House Of Lords
Thursday, 10th December, 1987.
The House met at three of the clock ( Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of St. Albans): The LORD CHANCELLOR on the Woolsack.
Air Transport In Europe
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, following the meeting of the European Community Transport Ministers' Council held on 7th December, agreement was reached on a total package covering air capacity and market access; and what was the action agreed on for hastening the liberalisation of air transport in Europe.
My Lords, I am pleased to say that a package of measures liberalising civil aviation within the Community was agreed by the Transport Council last Monday. This provides important new opportunities for airlines to introduce lower fares, to decide for themselves what capacity to operate, to open up new routes and for greater competition.This is a major achievement. But it is only a first stage. The council is committed to agreeing on a second, more far reaching, step by 30th June 1990 as part of the wider process of completing the Community's internal market by the end of 1992.
My Lords, I welcome this initial first step and congratulate the Government on their sustained effort to bring about the signing of this agreement, but is the Minister aware that regretfully I have reservations? I believe that the original proposals have been watered down significantly because of strong opposition from member states of the Community.Will the Minister answer two brief questions? Does he feel able to agree that substantial benefits to airline passengers are unlikely until more radical measures have been introduced; and that the present agreement will have less far-reaching effects on fares than people imagine? Lastly, can he tell us when the agreement comes into force?
My Lords, we certainly would not have agreed to the package if we did not believe that it was worth having. In fact it is based largely on the UK initiative and took shape during our Presidency last year. It will allow airlines to compete over the level of discount fares and to introduce new cheap fares. It relaxes the strict 50–50 capacity-sharing rule where it still exists, allowing airlines to operate more flights without being limited to matching the number flown by foreign airlines.It will open up 60 new routes for UK airlines between hub and regional airports. But, most importantly—and for this reason in particular I think that we shall see cheaper fares—it allows direct head-to-head competition, known as multiple designation, on all the major trunk routes in the Community. This will mean increased choice for the consumer. The package comes into effect on 1st January next.
My Lords, I welcome this package agreement, but does the Minister agree that there could be a danger of believing that liberalisation is deregulation? This is particularly important as on 9th November the Secretary of State said in answer to a Question in the other place that the air space over London is crowded. Must we not keep that in mind? Therefore we will still need to regulate the capacity our airports can cope with.
My Lords, yes. I can assure your Lordships that all member states take their responsibilities for air safety extremely seriously. Questions of safety and congestion are kept under constant review. However, there is nothing in the new package that in any way weakens our present stringent safety standards and procedures or our determination to enforce them. The airports policy White Paper in 1985 took into account effects of liberalisation. As I said in an earlier answer, there is great potential for development of regional airports in this package.
My Lords, is the Minister aware that I hope my reservations will prove groundless, but I doubt it? If I put down a Question for Written Answer will he have the details of this agreement printed in Hansard? It will then be much easier for all quarters of the House to realise what has been put forward.
My Lords, certainly. Copies of the instruments as adopted will be deposited in the Library as soon as they are available from the Commission. However, I should also be happy to provide a summary of the effects of the package in the form of a Written Answer if the noble Baroness puts down a Question.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government who is responsible for the present state of the roadworks between Trafalgar Square and Oxford Circus.
My Lords, the City of Westminster as the highway authority is responsible for roadworks on the roads concerned.
My Lords, I thank the Minister for his helpful and informative reply. However, is he aware that, although the roadworks have now been completed in the Haymarket and in Regent Street, it still takes in a bus between 15 and 25 minutes to travel from Trafalgar Square to Oxford Circus and in a taxi between 14 and 22 minutes, and vice versa? Is he also aware that the pavements in this area are full of potholes? There are 195 cracked paving stones.
My Lords, as I said in my orginal Answer, this is a matter for Westminster City Council. However, noble Lords will be aware that there are major developments at Piccadilly Circus at the moment involving LRT and Westminster City Council and also various commercial developments. These will be continuing for a little longer. In the meantime I am sure that Westminster City Council will do what it can to alleviate the traffic problems.
My Lords, I appreciate the importance of the Question put by the noble Baroness, but is the noble Lord also aware that some of us are concerned with similar problems in the suburbs and in other parts of the country? Can he tell us whether the Street Works Advisory Committee, set up under the recommendations of the Horne Committee Report, is working satisfactorily, or have there been any complaints about it?
My Lords, that is rather a different question. I am aware that the Committee was set up under the recommendations of the Horne Report. but I am not briefed about its present progress. Perhaps I can find out and write to the noble Lord.
My Lords, will my noble friend consider asking whichever council it is, wherever it may he in London, whether more forethought can be given when these roadworks are to take place and notices put up so that a motorist can see them a mile or more before he reaches them? It might make life much easier, because one could then take an alternative route.
My Lords, I am sure that Westminster City Council will read what has been said this afternoon in your Lordships' House. Perhaps it will be able to act on it.
My Lords, is the noble Lord aware that whichever highway authority is involved, it is in danger of losing the battle? For instance, Jermyn Street, which was previously blocked by parked cars, is now blocked by repairs. Is he also aware that London is in danger of winning the battle with New York and Washington over the number of holes which remain in roads? I hope that these will be repaired.
My Lords, I too hope that the holes will be repaired. As I said earlier, it is a major development at Piccadilly Circus, which obviously is taking time. The Government give ample allowance to local authorities for road repairs.
My Lords, will my noble friend accept that it is now quicker to walk from Piccadilly Circus to Oxford Circus? In that context will he please congratulate British Airways on its excellent Christmas lights?
My Lords, yes, certainly.
My Lords, having regard to the number of potholes, can my noble friend say whether the road authority is legally liable for damage to vehicles caused by them?
My Lords, I am afraid I do not know the answer to that. I shall have to write to my noble friend.
My Lords, is the Minister aware of the deteriorating standard of pavement maintenance? When pavements are repaired the paving stones are often badly fitted. Is he further aware that I was all but thrown forward from my wheelchair when I hit one of these ill-fitting paving stones not long ago?
My Lords, I am sorry to hear the experience of the noble Viscount but this is very much a matter for local councils, not for the Government.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will commission the Royal Mint to examine and publish a report on improving the present design of the national coinage, and its ratio to paper currency.
No, my Lords. The Royal Mint has already published a pamphlet, The United Kingdom Coinage, setting out options for possible changes to the coinage. The Government are considering responses to that pamphlet and will be making a statement shortly. There are no plans to alter the ratio of coin to paper currency.
My Lords, I thank my noble friend for advising us of the advances being made. Can he tell us how wide the consultations have been and what research has been undertaken? Will his department take into account the severe imbalance between coinage and paper in our currency? Will he take into account the Scottish attitude to the preservation of the £1 note and perhaps, if necessary introduce a £2 note?
My Lords, the Government consulted widely on these plans. They have already commissioned research by Nottingham University. We have consulted interested parties such as the blind, industry, retailers, banks, manufacturers of coin vending machines, and the general public, from whom we received over 3,000 letters. The imbalance between note and coin in this country is historic in that it has always been the same as it is now, at a ratio of either five to one or four to one.Scottish pound notes and the question of whether or not the banks wish to continue with the printing of them are a matter for the Scottish banks. I understand that the banks are taking increasing numbers of coins.
My Lords, can the Minister tell us why the £2 coin appeared and has now disappeared?
My Lords, the £2 coin was issued as a commemorative coin. There are no plans to bring it into general circulation. On the other hand, there may be further occasions for commemorative coins.
My Lords, can the Minister give any assurance that the Scottish £1 note, which circulates with great acceptance north and south of the border, will be protected in any review that is undertaken?
My Lords, as I said, that is a matter for the Scottish banks. We should certainly not attempt to influence their decision to go on issuing pound notes.
My Lords, is the noble Lord aware that the form which our currency takes is not merely a matter for the banks? It is a matter of national concern, particularly in view of the unsatisfactory state of both its weight and its design in many forms. Will the Minister give some indication of what he means by "shortly" when he says that the Government will make a decision and an announcement shortly? How quick will "shortly" be?
My Lords, I hope it will be before Christmas, but I do not want to commit myself completely to that. As I have said, we consulted not only the banks but a great many other interested parties and the general public.
Bovine Tuberculosis: Dairy Herds
My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied with the measures taken to prevent the re-establishment of tuberculosis in dairy herds in this country, and why the compensation offered in cases of compulsory slaughter is so much greater in Northern Ireland than in Great Britain.
:Yes, my Lords. We are satisfied that the measures taken are adequate. The basis on which compensation is calculated is generally the same for Great Britain and Northern Ireland. However, in Northern Ireland the maximum may be increased by up to £225 for pedigree cattle only. This is a longstanding arrangement, originally designed partly to encourage farmers to join the eradication scheme when it was voluntary, and which recognises the particularly strict health controls which apply in Northern Ireland and the additional risk of infection by movements across the land border.
My Lords, I thank the Minister for that reply. Is she aware that this Question arose from the eradication of a good pedigree herd belonging to a very good farmer, an ex-president of the NFU in Scotland? A number of disturbing features apply to the whole country. The first is that the three-year test in a previously clear herd suddenly disclosed 80 reactors out of 200. Secondly, traces of tuberculosis were found in the lymph glands in the cattle killed which were not reactors. Does this not indicate that countrywide tests should be more frequently applied? Is it not nonsense that this farmer, if his herd had been in Northern Ireland, would have received £70,000 more in compensation? Surely the grounds for this difference have long since disappeared.
My Lords, the noble Lord has asked a great many questions under the heading of one supplementary. The question about animals killed but which were not reactors showing positive tuberculosis results is in a way of no account because when a test reveals the reactors are slaughtered and a further test is carried out on the whole herd 60 days later. If disease is confirmed at post-mortem or in the laboratory further tests are carried out at 60-day intervals until the herd is clear. The average premium which has been paid over the past six months in Northern Ireland has been £130 and accounts for less than I per cent. of the total compensation paid in Northern Ireland.
My Lords, will the noble Baroness give the figure showing whether the number of reactors found over the past 10 years is on the increase or is remaining stable?
My Lords, the incidence of reactors is currently about 0·015 per cent.
My Lords, is that an increase or a decrease over the past 10 years?
My Lords, the incidence is very much decreased over the years.
My Lords, perhaps I may press the Minister on the level of compensation between animals from Northern Ireland and the rest of the United Kingdom. I understand the reasons for the higher level of compensation for pedigree animals when that was introduced, but surely that no longer applies.
My Lords, I understand that there has been the greatest difficulty in eradicating this disease in Northern Ireland. Furthermore, there is the problem of movement of cattle across the border. It is considered necessary to continue with this amount of money in that area where the incidence is still higher than in this country.
My Lords, I am concerned about the difference between pedigree and non-pedigree animals. I can understand the level of compensation being higher for the reasons given by the noble Baroness, but why is there the difference between the pedigree and the non-pedigree animal?
My Lords, successive governments have taken the view that 75 per cent. strikes a fair balance between recognition of the efforts and co-operation between herd owners in TB eradication, on the one hand, and, on the other, the considerable public investment in fighting the disease. With the incidence of tuberculosis now at a very low level farmers can insure against the disease at reasonable premium rates to cover the difference between compensation and the market value of reactors.
My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Copyright, Designs and Patents Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Motor Vehicles (Compulsory Insurance) Regulations 1987 and the Supplementary Benefit (Requirements) Amendment Regulations 1987 will be taken.
Merchant Shipping Bill Hl
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order—
- Clauses 1 to 9,
- Schedule 1,
- Clauses 10 to 12,
- Schedule 2,
- Clauses 13 to 20,
- Schedule 3,
- Clauses 21 to 33,
- Schedule 4,
- Clauses 34 to 43,
- Schedule 5,
- Clauses 44 to 51,
- Schedules 6 and 7,
- Clauses 52,
- Schedule 8.
—( Lord Brabazon of Tara.)
On Question, Motion agreed to.
Consolidated Fund (No 2) Bill
My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—( Lord Beaverbrook.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 8th December), Bill read a third time, and passed.
Civil Evidence (Scotland) Bill Hl
Clause 1 [ Rule requiring corroboration abolished]:
moved Amendment No, 1:
Page 1, line 10, leave out ("in relation to civil proceedings").
The noble and learned Lord said: My Lords, this is a technical amendment to remove unnecessary words from Clause 1(2). I beg to move.
On Question, amendment agreed to.
Clause 2 [ Admissibility of hearsay]:
moved Amendment No, 2:
Page 2, line 2, at end insert—
("(3) In paragraph (e) of section 16 of the Administration of Justice (Scotland) Act 1933 (power to make provision as regards the Court of Session for admission of written statements etc. in lieu of parole evidence), for the words "the admission in lieu of parole evidence of written statements (including affidavits) and reports, on such conditions as may be prescribed" there shall be substituted the words "written statements (including affidavits) and reports, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1987, to be received in evidence, on such conditions as may be prescribed, without being spoken to by a witness".
(4) For paragraph (3) of section 32(1) of the Sheriff Courts (Scotland) Act 1971 (corresponding power to make provision as regards the sheriff court) there shall be substituted the following paragraph—
"(e) providing in respect of any category of civil proceedings for written statements (including affidavits) and reports, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1987, to be received in evidence, on such conditions as may be prescribed, without being spoken to by a witness,".")
The noble and learned Lord said: My Lords, in Committee, when accepting an amendment put down by the noble Lord, Lord Morton of Shuna, to delete what was then Clause 2(3) of the Bill, I indicated that I wished to be certain that the Bill dealt properly with the question of evidence given by way of written statements. Procedural rules made under the powers contained in the Administration of Justice (Scotland) Act 1933 and the Sheriff Courts (Scotland) Act 1971 provide for the admission in certain categories of case of written statements, including affidavits and reports in lieu of oral evidence. Power is also given to prescribe conditions which must be satisfied before the document is admitted.
These rules serve two purposes. First, they ensure that statements are admissible. Clause 2(1)(b) of the Bill provides for the admissibility of statements made other than during the course of a proof; and to that extent the rules would be otiose. The second purpose is to provide in appropriate circumstances that the statement will be capable of being received in evidence without requiring to be spoken to in any further way—in short, to be "self-proving". As I mentioned during the debate in Committee, there are instances where it is not entirely clear on the face of the rules whether production of a statement in satisfaction of the prescribed conditions will render a document self-proving. This appears to he generally accepted in practice, however.
I think it right that we should take the opportunity presented by the Bill to make it clear that the court does have power to provide that documents which are otherwise admissible and satisfy any prescribed conditions can be self-proving. In this way I believe that a proper distinction will be established as between those statements admissible under Clause 2, but requiring authentication, and those statements to which the court has decided to accord special status as being not only admissible under Clause 2 but also self-proving in the particular circumstances prescribed by rules of court.
I have said that the rules will be overtaken by Clause 2(1)(b). It would surely be inappropriate to leave in place a power to make rules purporting to render written statements, including affidavits, admissible. Such a power could not be properly exercisable in so far as all such documents will in future be admissible. The amendment makes it clear that for the future the power to make rules in this regard does not extend to matters of admissibility.
This amendment therefore refines the existing powers in the 1933 and 1971 Acts to clarify that the rules of court may provide that in any specified category of case a written statement otherwise admissible will be taken to be the statement of the person alleged to have made it, provided that it satisfies any prescribed conditions as to authentication.
This is an important matter and one to which considerable thought has been given both inside and outside this House. It has resulted in an amendment which I consider effects a considerable improvement to the Bill. I have sought the views of the Lord President of the Court of Session and he is content with the manner in which, as a result of this amendment, the Bill would deal with rules of court. I beg to move.
My Lords, the noble and learned Lord has taken up at this stage all but one of the points I tried to raise at Second Reading and in Committee. He has taken the areas which I tried to amend and refined and polished my amendments. I am delighted and very much welcome the helpful and constructive approach that he has taken.
On Question, amendment agreed to.
Clause 9 [ Application of certain provisions of Law Reform (Miscellaneous Provisions) (Scotland) Acts 1966 and 1968]:
moved Amendment No. 3:
Leave out Clause 9.
The noble and learned Lord said: My Lords, it may be for the convenience of the House if in moving this amendment I also speak to Amendments Nos. 4 and 5.
This package of amendments is the result of further consideration of the question as to what types of proceedings should come within the ambit of the Bill. At present, as well as applying to ordinary courts, the Bill applies to common law arbitrations and other proceedings where the parties can exercise control over which rules of evidence are to regulate their case. I accept it to be a logical extension of the policy to have the Bill apply on the same footing to statutory arbitrations, tribunals and inquiries. In this way the Bill will provide a uniform basis of evidential rules for all the proceedings mentioned. If this and the succeeding amendments are accepted, the Bill will apply to the whole range of civil proceedings but it will make the important distinction that different evidential rules can be applied to those proceedings where it is competent to do so by, for example, tribunal rules or by agreement of parties in arbitrations.
The remaining amendments are consequential. The inclusion of proceedings which were originally not covered by the Bill enables the provisions of the Law Reform (Miscellaneous Provisions) (Scotland) Acts 1966 and 1968 to be repealed in the schedule to the Bill. With that understanding, I beg to move.
On Question, amendment agreed to.
Clause 10 [ Interpretation]:
moved Amendment No. 4:
Page 3, leave out from beginning of line 42 to ("and") in line 44 and insert—
("( ) any arbitration, whether or not under an enactment, except in so far as. in relation to the conduct of the arbitration, specific provision has been made as regards the rules of evidence which are to apply;
( ) any proceedings before a tribunal or inquiry, except in so far as, in relation to the conduct of proceedings before the tribunal or inquiry, specific provision has been made as regards the rules of evidence which are to apply:").
The noble and learned Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
Schedule [ Enactments Repealed]:
moved Amendment No. 5:
Page 6, line 7, at end insert—
|("1966 c. 19.||The Law Reform (Miscellaneous Provisions) (Scotland) Act 1966.||Section 7.|
|1968 c. 70||The Law Reform Miscellaneous Provisions) (Scotland) Act 1968||Section 9. Sections 13 to 16. In section 17(3), the definition of "computer".")|
On Question, amendment agreed to.
My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:Consolidated Fund (No. 3) Act, Highland Region Harbours (Miscellaneous Powers) Order Confirmation Act, Lerwick Harbour Order Confirmation Act, Associated British Ports Act.
Copyright, Designs And Patents Bill Hl
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—( The Earl of Dundee.)
My Lords, I wonder whether at this stage I might make an appeal to those of your Lordships who are taking an active part in this Bill. In this House we have no guillotine and no selection of amendments as is the case in another place. Any noble Lord may table and move any amendments that he likes and as many noble Lords who wish to speak to them are free to do so. And this is clearly right for a revising Chamber. But I really do believe that it presupposes a large measure of voluntary restraint both in the number of amendments tabled and in the number and length of interventions. I must tell your Lordships that amendments have been tabled to this Bill at such a rate that, as we enter this fourth Committee day, there is a larger number still to be discussed on the fourth Marshalled List than appeared on the first Marshalled List at the beginning of the opening day.It clearly cannot be right for an amendment that happens to be called in the afternoon and early evening to attract an inordinate amount of discussion whereas those that are called after the dinner adjournment have to be skimped. The efficacy of your Lordships in dealing with a particular point does not necessarily vary in proportion to the amount of time spent on it. Very often the reverse is the case. And it is generally accepted on all sides of the House that it is incumbent on all noble Lords to see that the Government are enabled to get their business through in reasonable time. This particular Bill, being intricate, wide-ranging and controversial, although almost entirely in a nonparty-political way, is one that your Lordships' House with its wide range of expertise and experience is ideally suited to process. But it is also one on which the rate of progress is almost impossible to control. It is proposed that, today being a Thursday, the House should sit until the normal time of somewhere between 10.30 and 11 tonight. There will be two further Committee days next week. On Monday next, 14th December, the House may sit until midnight but on Thursday, 17th, it will rise no later than 6 p.m. There will now be one final day after the Christmas Recess, on Tuesday, 12th January, when the Committee stage of this Bill will be concluded at whatever hour that may be. The appeal that I therefore wish to make is that all noble Lords should exercise the voluntary restraint that I have referred to, both in moving and speaking to amendments, so that the hour at which the Committee stage is completed and the House is therefore able to rise on Tuesday, 12th January, does not present too awesome an ordeal either to your Lordships or to the staff of the House who serve us so well.
My Lords, perhaps I may thank the noble Lord for that statement. I should like to respond to it and support him in the plea he makes for a large measure of voluntary restraint by your Lordships in the number and length of interventions during the Committee stage of the Bill. I should in fact say that I do not think that overmuch time has been wasted on the Bill, and that amendments have been cogently and concisely put.I should particularly like to thank the noble Lord the Government Chief Whip for agreeing that it is sensible that there should be an extra Committee day on this Bill in the New Year. I am sure that with that extra Committee day on Tuesday, 12th January, we should, given goodwill all round, be able to complete our consideration of the Bill at Committee at a not too late hour on that day.
My Lords, from these Benches I also wish to thank the noble Lord the Chief Whip for making this statement. He was kind enough to give me some few minutes prior knowledge of what he was going to say. Again, as I think a subsidiary of the usual channels, I also welcome attention being drawn to this problem.The fact is that one cannot really restrain noble Lords from putting down reasonable amendments. Not all the amendments that have been put down late in the day have been from the Opposition parties. A goodly number of them have come from the Government, and I believe that there are still some government amendments to come before next week. Nevertheless, we are grateful that it has been found possible to take an extra day over this complicated and highly technical Bill. However, I would join in urging noble Lords to speak as briefly as they can to their amendments on the understanding that they very rarely change anybody's minds, however long they talk.
My Lords, I should like to thank the noble Lords opposite for their support in this way and, in anticipation, your Lordships.
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
moved Amendment No. 174:
After Clause 63, insert the following new clause:
( "Licensing scheme for making copies of sound recordings.
. (1) The Secretary of State may by order on the appointed date vary the provisions of this Act with regard to the making of copies for private purposes by members of the public of sound recordings or musical works on any recording medium by approving a licensing scheme in relation thereto.
(2) A scheme established for the purposes of this section shall—
(3) The Secretary of State may provide in such licensing scheme for the establishment of approved procedures for granting rebates of any royalty paid under the scheme to—
(4) A scheme established under this section may provide that non-compliance with any specified requirement of the scheme shall constitute a criminal offence punishable by a fine not exceeding level 5 on the standard scale.
(5) A dispute arising from the operation of any part of such scheme may be referred to the Copyright Tribunal.
(6) The power to make such order under this section is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Earl said: I beg to move Amendment No. 174. Having listened to the modest strictures of my noble friend the Chief Whip, whose dilemma one understands, I have put down only three simple amendments here, so I am not guilty of being one of those who have prolonged the proceedings of the Committee. The amendments are so reasonable that I have no doubt that the Government will be only too happy to accept them.
The purpose of this amendment is quite simple. It is to allow the Secretary of State to approve a scheme which legalises home-taping in return for the payment of a royalty on blank audio tapes. Everyone knows that home-taping has become a major consumer activity over the past 15 years. Research has shown that more than six times as much recorded music is acquired by the process of home-taping than is acquired by purchase. This taping is from records and from the radio. The effect on the record industry is that this has drastically reduced its ability to benefit from its market; it has also reduced the amount which performers and companies are paid for the work they have made and which other people now copy for nothing.
In 1986 over 90 million blank tapes were imported into the United Kingdom, and 90 per cent. of those blank tapes were used for recording music; and they cost about £1 each. The position at the moment is curious, if not absurd, in that it is legal to tape a record if it is played on the radio but it is illegal to tape it if it is played at home. But of course there is no way of enforcing the law. Those who tape at home are in fact breaking the law.
Home-taping is here to stay and no one objects to that, but the purpose of this amendment is to allow some reasonable return to the artists and to the record companies who have provided the material which is in demand, and at the same time to legalise what at present is illegal.
There is no simple way of doing this, or no specifically right way of doing it. The most reasonable way is to put a levy on the use of all blank tapes: in other words, to provide a royalty. The 1986 White Paper suggested a 10 per cent. levy. That seems modest enough. I should have thought that there was a sound argument for having a larger levy, but that was what was considered.
The 1986 White Paper also considered that only tapes which have a duration of over 35 minutes should be subject to a levy. Ordinary tapes which are used for business purposes, or those used for talking, would not be subject to the levy. Longer tapes which are used for recording books for the blind will also be exempt.
This would not be difficult to organise. My amendment allows the Secretary of State to draw up a scheme. A collecting agency would be empowered to collect a levy at a stated rate on all tapes which were imported, or tapes which were manufactured in this country. In fact almost all blank tapes are imported. This royalty would then be distributed in an appropriate fashion to the owners of the copyright—in other words, to the record companies and to the music publishers. The performers would then be paid their royalty in relation to the contracts that they had with the companies and the publishers.
The owners of the copyright and the performers would then be able to benefit from the public enjoyment of their work which, at the moment, they are unable to do. The fact that they cannot do this runs counter to the most basic principles of copyright which have been enshrined in English law for nearly three centuries.
I suppose that a reasonable encapsulation of the philosophy of this amendment would be that copyright owners and performers should be remunerated for the use of their material and performances by those who tape them at home to the prejudice of the legitimate interests of copyright owners. There is no realistic alternative to a compulsory levy on blank recording tapes as a means of providing such remuneration. Any levy should give the public an entitlement to record for private purposes.
That was not my view. That was the Government's view, which they put forward in their White Paper of 1986. Indeed no fewer than six pages of the White Paper were allocated to dealing with the problem of allowing a levy on blank tapes. The Government were clear in what they intended to do. My amendment puts into the Bill so far as possible what was said in the White Paper. The White Paper said that the Secretary of State will be empowered to make an order providing for a levy. The levy will be payable by the manufacturers and importers. Any order will specify the categories of copyright owners and performers who are entitled to benefit from the levy. The rate of levy will be prescribed in the order. Any levy scheme introduced will be operated by a collecting society approved by the Secretary of State. Trading in leviable tapes without notifying the society will be a criminal offence. Performers and owners of copyrights and sound recordings and works would receive the benefit of 10 per cent. of the retail sales value. As a consequence of the order, domestic users will be entitled to make for private purposes recordings of copyright material.
All the onus is on the Secretary of State in making an order, and the amendment permits him to do that. That is what the Government thought in 1986, and they also thought so as recently as June this year. A brief circulated in respect of the Queen's Speech included the announcement that a Bill would be brought forward to reform the law of copyright and other intellectual property. One of the main provisions would be to legalise home taping in exchange for a 10 per cent. levy on blank audio tapes.
l am a fairly generous fellow and I like to think that the Government must have forgotten to include that provision in the Bill. I hope that my noble friend will acquit me of putting any knives into him from behind, because I would not do such a disagreeable thing. I am trying to help him in his modest difficulty. This issue did not appear in the manifesto because manifestos deal with more important matters than putting levies on tapes. However, it appeared in the Conservative campaign guide, which stated that as part of a major reform of the law of copyright home taping would be legalised in exchange for a 10 per cent. levy on blank audio tapes which would be paid to copyright owners.
The Government have consistently taken that view and I am bound to ask what has happened to make the Government change their mind. I am all in favour of governments changing their mind because it shows that they are not rigid and inflexible. I hope that they will change their mind again because I believe that the provision is important. I hope that they will incorporate the provision which they stated in the Green Paper was their intention. They also stated in the White Paper that that was their intention; they stated during the election campaign that that was their intention; and they stated in the Queen's Speech that that was their intention. I thought that the Government were right on those occasions, and I still think that they are right. I beg to move.
I hope that the Committee will not accept the amendment. I believe that it is contrary to what the law should be. I suggest that home taping is in no way wrongful, in no way illegal and in no way an infringement of any copyright. I suggest that what was stated in the White Paper is wrong in law. Paragraph 6.2 states:
I should like to put forward one or two instances. Let us suppose that there is a broadcast of some of the music of Gilbert and Sullivan and that at home I record that on to tape. There is now no copyright in the operas of Gilbert and Sullivan. That is removed after the author or authors have been dead for more than 50 years. If anyone at home thinks sufficient of my speech in this Committee to record it on tape, there is no copyright. It might well be that they will tape a speech made by my noble and learned friend Lord Hailsham; and if so there is no infringement of copyright because there is no infringement of what is recorded of my noble and learned friend's speech. Those are simple instances in which home taping is not in the least illegal. I should like to put forward further examples of recordings which may be the subject of copyright. I appeared in a programme called "Jim'll Fix It", where I played the part of a mock judge and I gave a mock judgment about Noddy who had been found guilty of reckless driving in Toytown. If that programme had been the subject of home taping (as it might have been) I would not now have any complaint about that. It is only the BBC which could complain because it owns the copyright. If that is right, it would be able to say, "You are infringing the BBC's copyright and not Lord Denning's". The same would apply to the "Wogan" programme on which the noble and learned Lord, Lord Hailsham, and I appeared and gave an interview, or whatever it is called. I suggest that we would not own the copyright; it would be owned by the BBC or some such body. My question is this: is it not lawful for every home taper, if he so wishes, to tape "Jim'll Fix It", or "Wogan", or whatever? Is he infringing anyone's copyright? I suggest he is not for the following simple reason. When the BBC, or any such body, puts out the programmes, knowing that millions of people at home will tape them, it impliedly consents to that home taping by so doing and therefore it is no infringement at all. If there is an objection, let the announcement be shown at the beginning of the programme, "You are not to home tape this programme", and then it would be illegal. Unless that is shown they are impliedly consenting and acquiescing to all the home tapers taping it. I suggest that the fundamental proposition is quite wrong. Home taping of any programme is not illegal unless it is specifically prohibited by the broadcaster or whoever, as the case may be. If that is right, it destroys the whole basis of the blanket fee in regard to the selling of the tapes. There is nothing unlawful in home taping. One of the amendments tabled provides that the Secretary of State may make a licensing system. Another states that he shall make a licensing system. What is even worse is the fact that he is given power to create new criminal offences. If a person makes a tape or supplies it without paying the fee, he will be guilty of a criminal offence. The Secretary of State's regulations are not the right place in which to create new criminal offences. In each of these amendments power is given to the Secretary of State to define what are criminal offences under the law of England. That is not the right place. If a new criminal offence is to be created, it must be created by an Act of Parliament. I entirely oppose this amendment."the owners of copyright in audio, video and broadcast material have the right to control reproduction of that material. This means that much home taping is illegal since there are copyrights in most broadcasts and recordings and the owners of those copyrights have not consented to the home taping."
I hesitate to suggest that the noble and learned Lord, Lord Denning, is totally mistaken but for the fact that on more than one occasion in the past legal luminaries have reached a similar conclusion. The noble and learned Lord, Lord Denning, will agree that in the past he has been mistaken, as happens to us all from time to time. It is therefore conceivably possible that he may be mistaken on this occasion, and I am sure that he will be ready to accept that.I think that the noble and learned Lord is wrong because the Government are right in this matter. It sticks a little in my gullet to say that; but it is true that throughout the whole of this affair the Government have been right until this moment when they state that they will not act in the way in which they have always recommended. I do not know why the Government have changed their mind. I listen to the noble Earl, Lord Ferrers, in the hope that he will be able to tell us why. I do not know whether he knows, but I do not know. The Government have not told us why. They have merely stated that they have changed their mind. We have had no details. Until we have some details, I think noble Lords on all sides of the Committee may ask: what has happened to change the Government's mind on this issue? Here is something which is agreed throughout the entire industry—performers, copyright owners, the whole range—and the Government themselves have said that there is no reasonable or proper alternative to reward people, who are entitled to reward other than this 10 per cent. levy which the Government proposed. And, as the noble Earl, Lord Ferrers, pointed out, they went so far in their own statement as to declare the size of the levy. They said that it would be a 10 per cent. levy, which is most unusual. It seemed to declare a certainty of procedure which at the last moment they have decided not to follow. I simply do not understand this. I shall not go over the entire ground of the matter, partly in response to the appeal made so persuasively by the noble Lord the Chief Whip and endorsed by the other Chief Whips. It would he possible to do that, but I shall refrain from doing so. The arguments have been so cogently expressed in the past that I should add nothing to them if I were to try to do so this afternoon. Noble Lords who have read the White Paper on this matter, and who have considered the debates which took place earlier on the Green Paper on the subject, can have no doubt that the Government were on the right path. But they are now retreating from that position for reasons which entirely escape me and which I cannot understand for the moment. It is my hope that the Government will listen to the appeal made by the noble Earl and, if they were to do so—I say this in a further contribution to the appeal of the Chief Whip—and were to agree to the amendment put before them by the noble Earl, although the noble Earl's proposals are less good than those which the Government themselves made in the White Paper but go some way towards them, I would not move the two amendments which follow in my own name. I hope that the Government will accede to that appeal and will do as I suggest.
It may be convenient if I speak to my Amendment 174C, which is very similar to the amendment put down by the noble Earl, Lord Ferrers. My amendment is down in the names of the noble Lord, Lord Somers, and myself. The basic difference, apart from the fact that mine is longer and better, is that I provide for the Government at some stage, if necessary, to introduce a similar scheme for video.One of the great problems with some of the speeches I have heard in this Chamber is that quite a lot of noble Lords have appeared on television, like the noble and learned Lord. Lord Denning. If I may say so to the noble and learned Lord, Lord Denning, who I believe appeared on a programme called "Tom'll Fix It"—
"Jim'lI Fix It".
"Tom'll Fix It" will do just as well. The fact is, if I may say so with the deepest respect, that the noble and learned Lord is a great and senior professional judge but he is an amateur actor, and there are out there a great number of professional actors who are earning a living at what he was doing and who have some concern about copyright. They have some concern that the product of their art is being exploited by other people with no return to them.I respect what the noble Lord, Lord Denham, said earlier about keeping speeches short, but perhaps I may say that the truth is that, first, it is a most important amendment, and, secondly, it is a most important Bill and I should not have thought it a political Bill that needed to be rushed through this Chamber in any way. However, home taping has become the single biggest use of pre-recorded music today. Half the adult population of this country copies music. It does not buy it; it copies it. A third of adults with tape equipment have access to twin cassette decks and can copy. Many children of 8 to 14 are already in the habit of copying music. It has become a natural thing, and the British Market Research Bureau—I have quoted its figures so far—estimates that something like 80 per cent. of children copy music. That is a great flood. I am not suggesting for one moment that you can stop it, but can we stand idly by and allow it to go on without any recompense to the music industry, the composers, the lyricists, the orchestras, etc? All blank audio tapes are imported, most of them from Japan—more than half, certainly—and there are approaching 100 million blank cassettes sold every year. Why do you buy a blank audio cassette? You buy it to copy music or something else that you may want from the BBC, from the independent radio stations or from records. It is a common thing now that you can go to your local library and hire a new issue of a record. You take it home, you tape it and then you take the record back. What have you done? You have paid £1 for hire to the local library, from which the author, the composer and the music companies get nothing. You paid £1 to that local library for the use of it. I do not condemn it, but you have copied it and then you pass it on to friends. That is just audio tapes, and it has become a tremendous flood. Whatever way noble Lords look at it, the fact is that it is robbery. Somebody's creative rights are being robbed. The noble and learned Lord, Lord Denning, said that there is no harm in copying a tape. But if every home in this country had a reprography machine, what would we say if people borrowed a book from the library, made innumerable copies of it and passed them out to their friends? Would not that be theft? Would not there be an outcry about that? Is there any difference between that and copying music or songs? The difference between my amendment and that of the noble Earl, Lord Ferrers, is that I look to the future on the question of video tapes. That is already a danger on the horizon and, in a way, it is even more serious because video tapes cover a wider range than music. You have composers, you have playwrights, you have directors and you have actors, all of whom under their union agreements get extra fees if their performances are reproduced, and perhaps sold in Australia, America, or wherever; but they do not get the fees if their performances are stolen and copied on a video cassette. We are now getting to a situation where there are twin cassette decks for videos, and it will be a simple matter for people to set them up, hire a video, copy it and then pass it on. I admit that it is not yet a serious problem, but what we have done in the amendment is to provide for the Government, at some stage or other, if the problem becomes serious, to introduce the necessary regulations about a levy on video tapes. It is a growing problem. Other Western countries—France, Germany and Portugal—have introduced a home taping levy both on video and on audio, and it has been shown, particularly in those countries, that the amount of levy on the audio tape has either been absorbed by the manufacturers or passed hardly noticed by the people who buy the tapes. So I do not think we have a great problem there. If the UK becomes the odd man out, there may well be a situation in which some of the record companies move elsewhere. What are the objections to this licensing scheme? I do not like the word "levy". I prefer to call it a licensing scheme, but for the sake of shorthand I will call it a levy. What are the objections to it? First, it is said that it would be a new tax. The Government themselves, as the noble Earl, Lord Ferrers, said, admitted in the White Paper that it would not be a new tax. and there is no reason why the Government should become involved in it at all. We have some very efficient licensing societies in this country. They could get together and collect this levy and distribute it. It would not involve the Government in any cost or in any effort. Another objection is that the bulk of the money would go to the well-off people. That is no argument, is it? You may as well say that if a millionaire's home was burgled, the police should take no action because he could well afford to be burgled. In any case, with this levy it would be quite possible, as with public lending right, to put a ceiling on it. That would be quite acceptable to the industry and to the creative people in the industry. But it certainly is not a defensible argument to say that because some money might go to the well-off people we should not have it. The principle remains the same whether £1 or £1 million is involved. Another argument is that not every tape is used to breach copyright. Of course there may be a few that people use for dictating messages or to send off to their children in Australia and such places. So there is a certain element of rough justice here. There is a certain element of rough justice in the public lending right Bill in the sense that composite authors sometimes do not receive anything. We cannot get absolute perfection, but are we going to throw away justice because we cannot get absolute perfection? In any case, the number of audio tapes that are sold for use other than copying must be really very small. The other argument concerns the deaf and other handicapped people. There is no problem there as regards sorting out a scheme. If the Government were to accept this amendment and were to set up a licensing scheme I can assure the Committee that the licensing body of which I am the president would be very happy to work out a scheme with them whereby the handicapped people to whom I have referred would get a free run at this particular problem. There is really no great problem there. The other argument is that not much money would be raised by this measure. Again, that is absolutely irrelevant. The principle remains the same. In an earlier debate, some comment was made about America and the fact that some scheme had been brought into being there and all the costs had been swallowed up in administration. But the Americans have now got it right after three or four years of not having it right. That still does not depart from the principle. If this levy is right, we must have it. With apologies for yet again repeating what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said earlier, I must again say that if it is worth copying it is worth protecting.
I simply wish to address the problem which the noble Lord, Lord Willis, has touched on affecting the blind and the partially sighted. Normally I am extremely sympathetic to anything promoted by the noble Lord. I well recall his long and ultimately successful battle with the public lending right, which I fully applaud.The noble Lord recognised that not all tapes are used for recording music. That is particularly the case in relation to the blind, who use blank tapes as a basic aid where most of us would use a pen and a notepad, a pencil or some other means of annotation. They may also use such means for recording visits to ancient monuments or routes for rambling or other leisure purposes. They may also use them for some work purposes. Here I have a note about a student who used 75 four-track C90 cassettes for lectures and lecture notes during his course at university. So these blank tapes have many applications for the blind and the partially sighted. It is the case that both these amendments make an attempt to address this problem. The amendment moved by the noble Earl, Lord Ferrers, states:
As the noble and learned Lord, Lord Denning, pointed out, this provision is only permissive. Nevertheless, the amendment states that the Secretary of State may provide in the scheme for some special arrangements for,"The Secretary of State may".
The amendment of the noble Lord, Lord Willis, which is longer and has more flesh on it, is not permissive. It states that the Secretary of State shall do something about this. It refers to classes of persons or organisations entitled to rebate of royalty payments. In fact, the blind and the partially sighted are not actually specified in that amendment. If the Committee were to accept that amendment I should wish to see that group of people included in it. But there are great problems attaching to rebates and exemptions. The noble Lord, Lord Willis, said that he would be very happy to get together with the interested parties and that no great problem was involved. However, that is not my information. I have it on good authority that the Royal National Institute for the Blind and other bodies spent something like 18 months trying to work out a viable scheme with the Department of Trade and Industry, and that they failed to do so. One of the solutions that was put forward was vouchers for the blind. However, that would obviously produce much personal difficulty in a blind person's life. It would mean that he would handle more paper work, and what is generally called the hassle factor would increase. There would also be the difficulty of putting a value on the vouchers when tapes are of different lengths and different values. It was also suggested—I was initially attracted to this idea—that the principal organisation representing the blind should act as the distribution centre for levy-free tapes. That on first sight did not seem to be too bad an idea, but I understand from the RNIB that it simply does not have the organisation or the funding to carry out such a scheme. It has no network of local branches to act as distributors. There are 200 autonomous non-RNIB local organisations around the country, but there would be great problems in postage and even in identifying the members of the blind community because apparently blind people are not identified in any way by means of any central register. So there are very considerable practical problems facing any exemption or rebate scheme from a levy. The amendment of the noble Lord, Lord Willis, provides that the measure should not apply to tapes of under 35 minutes. Some Members of the Committee may be inclined to think that this is sufficient for the purposes that I have been indicating, but I gather from the figures that have been sent to me that practically all the tapes that are bought by the blind are of 60 or 90 minutes duration or longer. They seem to prefer those, presumably on the grounds that they represent greater economy, utility and practicality. Therefore, all these very considerable difficulties exist as regards implementing either of these schemes. I must say that given the appalling disability to which blind people are subject and the great utility of this method of recording information which is of the greatest use in their lives, I personally would find it very hard to vote for either of these amendments unless either of the noble Lords or indeed the Secretary of State himself can assure us that there is some copper-bottomed way around the problems that I have outlined. However, I have yet to hear it."persons who are blind or whose sight is so impaired that they cannot read".
I spoke regarding this matter at some length on Second Reading and I have no intention, in saying that I warmly support one or other of these amendments, of attempting to rehearse at length the arguments which have already been adduced. More particularly, as the noble Lord, Lord Willis, has made the case so clearly and so eloquently, it would be idle to seek to add very much to what he has already put before the Committee.One always listens to the opinions of the noble and learned Lord, Lord Denning, with the greatest respect, particularly on legal matters. Nevertheless, I confess that I was a little surprised to hear him state so broadly, as I understood it, that in no circumstances whatever would it be an offence to carry out home taping. Clearly, in the kind of instances that he gave—cases where one is dealing with non-copyright material—no infringement may be committed, but that is not the kind of case to which this argument is directed. It is directed towards copyright records, normally with copyright music on them. I should have thought—certainly the Government have always taken the view—that it is quite clear that there is an infringement of copyright in such cases. It was part of the Government's proposal that there would be an adequate quid pro quo to the public for introducing the scheme, which they had supported both in their Green Paper and in their White Paper. The public would be given a licence, in effect, to carry out home taping without any fear that they were infringing anyone's copyright. That would be a valuable right to the public because they would know that what they were doing was perfectly proper and lawful. The Government stated in their White Paper in the clearest terms on page 38 that they had concluded that:
that is, for the copyright owners. They say that they have given full and careful consideration to all the opinions expressed in response to the 1985 Green Paper and that they have come to that conclusion. With great respect, it seems rather surprising that the Government now come along and, having dealt very effectively with such arguments as were raised against the idea of a levy, say that they have changed their mind and are rejecting their own carefully considered opinion. At the very least, one would have thought that in those circumstances they would have given a careful and detailed explanation of the reasons they have for changing their mind. However, as the noble Earl, Lord Ferrers, has pointed out, we have not been vouchsafed any such explanation. The matter therefore stands in that extremely unsatisfactory way. Perhaps I may venture to make one other point. Private Members of your Lordships' House are in difficulty when they come to submit draft clauses of this degree of complexity. No doubt there are certain difficulties which arise on the actual drafting of clauses. However, one hopes that, if the Government can be persuaded to take further thought and revert to their previous considered opinion—which was expressed on several occasions in print—that such a levy is the only way of dealing with the matter, noble Lords advancing the proposals would withdraw their amendments on the understanding that the Government will produce carefully considered amendments which have had the full attention of their draftsmen. I urge on the Government, as far as one can, that they should reconsider the matter and come up with their own clauses in due course, which they have largely considered in their own White Paper. I urge them to present proposals, whether in the positive form that a scheme shall be introduced, which I imagine most noble Lords who are in favour of the amendment would prefer, or, alternatively, the lesser solution. which is taken in the amendment of the noble Earl, Lord Ferrers, that the matter should be discretionary and that the Secretary of State should be able to consider all the implications before the actual introduction of the scheme. That would enable him, for example, to have ample time to consider the technical complications that may arise, such as those just referred to by the noble Lord, Lord Kilmarnock, when he drew attention to the fact that there may well be technical complications in making the scheme adapt to the needs of the blind. That is a point with which all noble Lords will doubtless sympathise. I make a firm request to the Government to reconsider the matter and in due course introduce an amendment of their own."there is no realistic alternative to a compulsory levy on blank recording tape as a means of providing such remuneration"—
Perhaps I may make one brief comment. It has been stated that in the amendment standing in my name and in the name of the noble Lord, Lord Willis, there are no exceptions for the blind. However, if the Committee will look at subsection (4)(d), it will see that the Secretary of State may define the classes of persons or organisations entitled to a rebate of royalty paid. I hardly think that he would not class the blind as one of the groups who would be entitled to a rebate.
I thought that everyone was now in favour of freedom of the press and freedom of information being pushed as widely as possible. Now we understand that that is not so. Why should people pay 10 per cent. more for recording something they like at home? Why should an unemployed man have to pay 10 per cent. more for recording a football match? If we want wider freedom, let us have it here.
I suggest that the Government were entirely right to omit the substance of the amendment from the Bill. That is true quite apart from any questions of drafting. It is all a question of balancing the interests of a group with sectional commercial interests against the home user. It is doubtful whether the record industry is being seriously disadvantaged to the degree that we should tip the balance against the home user or that that situation would ever arise. The question of exceptions can be made a matter of drafting. I agree with what the noble Viscount, Lord Monckton, has said, and I think that the Government are entirely right.
I wish to speak briefly, not for any reason that the Chief Whip has given us, but for the better one that I do not have much to say on this matter. I have been building up a collection of tapes from the wireless for the last 10 years. Ten years ago, being a law abiding character, I had a licence for doing that; it cost 30 shillings in those days. That licence was then discontinued. Since then I have been in open breach of the law. I am very grateful that the Bill will make an honest man of me.I feel that the very large number of people who have enormously developed their interest and pleasure in music through that medium are without exception prepared to pay a small premium on tapes so that performers and composers—both of whom were omitted in the speech of the noble and learned Lord, Lord Denning—quite apart from the companies that arrange such matters, may get some return. That was the principle of a kind behind PR. It has worked very well, This is on the same lines and I feel that it is only a matter of justice to performers that they should receive something for this entirely new technological development.
In a finely balanced issue of this kind I think it is very important that all the facts should be clearly before us. The noble Lord, Lord Jenkins, said that the whole industry was in favour of the amendment. The tape manufacturers' industry is not in favour of it for obvious reasons.Secondly, the impression has been given that the only other kinds of use are for the blind and so on. However, enormous lengths of magnetic tape are used for scientific purposes and that is very important. It would be most unfortunate if that were not taken into account. We do not want to increase the cost of scientific work; there is a shortage of money for such work as it is. It is important that those factors should be put on the other side of the argument.
As I see it, the amendment applies mainly to the record industry. As I said on Second Reading, I have no interest to declare except that I am a collector of records as opposed to tapes. It seems to me that what the Committee has to decide is whether the record industry is being hit through home taping. One has only to go to a record shop in one's lunch hour to see how many people still buy records, cassettes and compact discs.Where there are rentals of videos it is a completely different matter. This Bill is the first such Bill for 30 years and in 30 years' time when many of us will not be around, we shall have another Bill and at that time home taping and videos will be just as relevant as is the old 78 rpm record machine. I am very glad to see facilities for the blind in the amendment of my noble friend. I raised that matter on Second Reading, at which the noble Lord, Lord Kilmarnock, made a very erudite contribution. In the last analysis this amendment will be very difficult to enforce. How much of a 10 per cent. levy will go to the young recording artist? I think that is the nub of the amendment. Nobody wants to see pirate taping. We are trying to educate young people and others to have an appreciation of the arts and particularly the art of music. I believe that the Bill as worded at present will do just that.
Perhaps with one or two sentences I may support this amendment. I prefer the amendment of the noble Lord, Lord Willis, for two reasons. First, because it makes it mandatory upon the Government to make an order and, secondly, because it is in line with the Government's White Paper on the subject. I said before in a different context in the debate on this Bill that I believe that the copyright owner—and I am thinking particularly of music in this caseߞshould be able to do his work in an environment in which he knows he will be obtaining some reward. Illegal home taping should be made legal because it is bound to continue. What is important is that the copyright owner should receive some benefit from a massive proliferation of his music.
I am mindful of the plea made to the House by the Government Chief Whip and I shall do my best to comply with his wishes.I wish to make a few remarks as co-tabler (if that is the right word) of this amendment in addition to those made by the noble Earl, Lord Ferrers. Since 1979 there have been no fewer than nine Secretaries of State for Trade and Industry. According to various organisations concerned with copyright issues, very few of them have known about copyright in all its technicalities. Why should they? It is a very specialised subject which very few people understand. I do not, and I do not pretend to, comprehend the numerous and complicated legalities involved. I do not understand the technicalities of patents, trademarks or whatever. But I know and understand the principles and I am in total agreement with the observations of the noble Lord, Lord Willis. Those principles, which are at stake here, are responsible for this amendment. It is entirely wrong that someone else's property should be used and enjoyed by millions of others without that person receiving any payment for it. That is especially true when very considerable financial investment, involving a high element of risk as well as artistic creativity both in thought and deed, has been made in the end product whether it is a motor car or a gramophone record. It is simply not good enough for the Government to acknowledge that massive copying of musical works takes place and then leave things as they are, saying that nothing can be done about it. I submit that that is irresponsible because something can be done. This Government said that something could be done about it. Many speakers have referred to the Green Paper, the White Paper and also to the gracious Speech presented earlier this year. However, as we all know, Secretaries of State come and go and Ministers responsible for the Department of Trade and Industry are no exception. As I said at the beginning of my remarks, we have had nine Secretaries of State at the DTI since 1979. Admittedly some of them, as it were, were merely passing through on their way elsewhere. But it is fair to say that those Ministers to whom the record industry had the opportunity of talking were in agreement with the principle of instituting a system of royalty payment to the copyright owners of recorded music when that recording was copied onto audio tape. The others who did not have this chance of speaking about the issue with the industry either did not know one way or the other or were against the establishment of such a system. As a result, the British record industry has had a very difficult time during the past 11 years. There is a well-known popular song from the 1930s—copyrighted of course—which some Members of the Committee will remember. It is called "You're Undecided Now". The Committee will be highly relieved to hear that I do not propose to burst into song at this point. The first lines of the song read:
"First you say you will, and then you won't
Then you say you do, and then you don't.
Those lines express exactly the dilemma that has confronted the British record industry for many years in its dealings with the DTI. The proposed charge on blank audio tapes is not a tax or a levy. It is a royalty payment for the copyright owner. The Government do not call it a levy—at least not throughout the White Paper; they refer to it as a royalty. I feel that the UK must join with its European partners in this matter. There will soon be eight member-nations of the European Community which will have protective legislation in place to give recompense to copyright owners for the massive private theft of their work that is taking place. The organising and collecting of royalties from the sale of blank audio tapes will not create any added bureaucracy. It will cost the Government nothing. It can easily be done from within the industry itself. Exemptions can be made without fuss to such groups as the blind, who perhaps have a special case against having to pay more for their blank tapes. I have my doubts about that point for two reasons. The first is that we are only talking about a royalty amounting to 10 per cent. of the retail price of a tape. The average price of a 90-minute tape is £1, which means an additional lop per tape—or does it? My second reason for having doubts about making exemptions is that the additional cost of 10p per tape could easily be absorbed by the importer. There is ample room within his profit margin to accommodate it. Sales of blank tapes are forever increasing at dramatic rates and last year they reached new dizzy heights. Nearly all tapes, as has been said, are imported. From an administrative viewpoint it would present few problems to anyone, least of all the industry itself, which is more than able to administer and organise collection and distribution. There is one final point I wish to make which I know I raised at Second Reading. I wish to mention it again because I see the Secretary of State for Trade and Industry sitting in his seat and my remark is directed to him. On retirement if he decides to write his memoirs and the fruits of his intellectual labours are illegally copied on a massive scale by an organisation based somewhere in the Far East, and it results in severe loss of revenue to himself, how would he feel? My guess would be that he would not be very happy. Exactly the same principle is at stake in this proposed amendment, Amendment No. 174.You're undecided now, so what are you going to do?".
These amendments would pave the way for the introduction of a levy on blank audio tape for the benefit of copyright owners and performers. How they achieve this, I suggest, is a secondary matter. I therefore should like to speak mainly to the matter of principle underlying these amendments.As in other areas of copyright we are faced here with a conflict of interest and one side or the other will feel aggrieved whatever the outcome. But there is more to it than that. There are some fundamental matters at issue. The problem, which is well known, is that modern technology has brought cheap tape recording into the home. Undoubtedly many people take advantage of this to make copies of copyright music without regard to the fact that this is an infringement of copyright. In the aggregate a great deal of music is undoubtedly recorded illegally in this way. However, it does not follow from this that the Government should step in and tax those who make the recording possible by supplying blank tape. The fact that the Government would neither collect nor receive any revenue from the levy does not make it any less of a tax imposed on one sector of the community for the benefit of copyright owners as a substitute for the exercise of the copyright owners' private rights. Governments do not normally act to enforce private rights, and there has therefore to be a very stong case indeed that it is in the public interest to impose a levy before the Government could agree to do so. We have not been persuaded that the case is sufficiently strong. One immediate fundamental difficulty is that any levy scheme involves making home taping legitimate. It is not clear that this would be in the copyright owners' interests. Indeed, some owners of copyright have themselves argued that such a step reinforces the public's perception that copyright is something that can be taken for nothing. The public would be largely unaware that a notional royalty payment had been made under a levy scheme, since any levy imposition would simply add to the costs of the manufacturer or importer and would not be identifiable by the consumer purchasing his blank tape. Furthermore, because the payment would have to be made in advance of the tape's use, then anyone who bought the tape for entirely legitimate purposes would be unjustly penalised. He would have paid for an act he had no intention of committing, and except in certain special cases it would not be practically possible to devise a scheme which allowed him to get his money back. In addition, there are those cases to which the noble and learned Lord, Lord Denning, referred and which the noble Lord, Lord Lloyd of Hampstead, confirmed, where taping takes place and no infringement of copyright occurs. This brings me to one very important special case; that of visually handicapped people who use blank tape as a means of communication in the same way that sighted people use note-paper. This amendment makes provision for granting rebates of the levy to visually handicapped people, as, indeed, did the Government when putting forward proposals for a levy scheme in the 1986 White Paper. Following the White Paper, the Government put a great deal of effort into devising a rebate scheme which would compensate visually handicapped people without placing fresh burdens on them; and, I have to say, we were unable to devise a scheme which was acceptable to organisations such as the Royal National Institute for the Blind and the Talking Newspaper Association. I hope that my noble friend Lord Ferrers will recognise that. Those are the main reasons for our coming to the conclusion that a levy would not be desirable. However, there are other concerns. We were disturbed by the possibility that a levy charged at the point of first sale would have been "marked-up" in the retail chain so that retailers might receive a windfall profit and consumers would pay significantly more than the amount going to copyright owners. A new bureaucracy would be required to administer the levy; and I am dedicated to reducing red tape, not increasing it. We were not satisfied that collection and distribution of the levy could be carried out without a substantial amount of the money collected being dissipated in the costs of administration, particularly given the need to include a mechanism for paying rebates to visually handicapped people and others, even if we could devise such a scheme. In all probability the cost of administration would have been disproportionate to the amount of money concerned. I know that the noble Lord, Lord Willis, said that it is worth setting up a licensing scheme even if the only result for those operating the scheme is that they barely cover their costs. However, I wonder whether that really would be sensible or desirable. For all those reasons the Government have decided that the financial benefits of the levy to copyright owners are outweighed by the disadvantages to consumers, particularly those who are visually handicapped. In other words, we consider that when the public interest is looked at in the round the case for government intervention in the exercise of private rights (which I referred to earlier) is not made out. The noble Lord, Lord Willis, compared home taping from public libraries with borrowing books from public libraries and photocopying them. But is the noble Lord actually arguing that we should therefore put a levy on all supplies of paper in the land? It is true that the Government previously took a different view, even as late as the time of the Queens' Speech at the opening of Parliament. We took a different view of the balance of the argument. The amendments in the name of the noble Lord, Lord Jenkins of Putney, seek, in a very pointed way, to hold us to what we said in the 1986 White Paper. However, I must make a confession. Governments do occasionally get things wrong, even this Government.
I am glad that at long last I can satisfy noble Lords opposite! We have given this matter a great deal of consideration since the White Paper was published and that has enabled us to see the underlying principles more clearly. Practical difficulties have also become more apparent with time, particularly in the light of our considerable but unsuccessful efforts to establish a satisfactory rebate scheme for blind people, to which I have already referred.I hope that I have given a full and helpful explanation of the Government's reasons for not proceeding with the levy; but before leaving the matter, I should like to say that our decision does not in any way imply a lack of concern for the record companies' problems over piracy. On the contrary, we are determined that commercial operations which carry out or blatantly inspire illegal copying are simply not allowed to become established in the United Kingdom. We heard during the Second Reading debate of the activities of Japanese copy shops which blatantly rent out compact discs for a very small fee and provide blank tapes and tape recorders on the premises so that the public may make their own copies. I view such practices with the same abhorrence as other members of the Committee who have spoken. We must not let those things happen here. That is why we have not made it legal to copy records and videos for private purposes. Alas, therefore, I have to inform the noble Lord, Lord Donaldson, that he might still be breaking the law. Consequently, since private recording remains an infringement of copyright, copyright owners in cases like this will be able to take action against the people doing the taping and the owners of the copy shop. That is also why my noble friend Lord Beaverbrook, in an earlier debate of the Committee, undertook to look closely and urgently at whether copyright owners need further rights to control or share in the benefits from rental operations. I am glad to repeat that undertaking today. In provisions of this kind, the action to be taken is by the copyright owner against people carrying out infringing acts. In contrast, a levy would be payable at first instance by ordinary traders and passed on to consumers who may never commit an infringing act. That is why I believe it is right to resist all these amendments.
Before the noble Lord finally sits down, may I ask whether I fully understand what he said at the end of his speech—that the Government are content to leave private home taping of a record bought by an individual as an illegal act?
Yes. Where there is an infringement of copyright it must continue to be an infringement of a civil right.
The Secretary of State has been very full in his reply—his interim reply, because there may be a further debate on the matter. This is clearly an important question and I agree with the noble Lord that it is a balance of interest. It is for the Committee to try to strike a proper balance of interest.We believe that the problems involved with the unsatisfactory state of the present law need some attention. In our view, they will become worse with the arrival of new technologies; for example, digital audio tapes and other technologies. As my noble friend Lord Willis said, over the next 20 years video technology will certainly become much easier to operate in the home, and therefore we are liable to get the same problems with home taping of videos as we have at present in home taping of records. There is again the international interest. The noble Viscount, Lord Caldecote, referred to tape manufacturers. Many tape manufacturers happen to be Japanese, and they are of course extremely interested in not only what we intend to do about this but the whole matter of what copyright protection we intend to give. I shall not rehearse the arguments for and against a levy. The noble Lord the Secretary of State has already done that as indeed have other noble Lords. The argument in favour of the consumer clearly is one to which we must pay attention. An article in the Evening Standard not long ago referred to the proposed blank tape levy, before the Government changed their mind, as a tax on silence. This kind of sloganising generates a great deal of heat. I do not wish to go through the various arguments in that form because the matter is too serious for such a discussion. Nor indeed do I wish to follow the noble Earl, Lord Ferrers, down the path of criticising the Government for changing their mind. Governments are after all entitled to change their mind. As the Secretary of State has already said in words that I shall remember and recall, governments do sometimes get things wrong. Indeed, this Government, I hope the noble Lord will admit, on occasions have got something wrong. If one weighs up all the arguments, there are problems in the Government's present position. My noble friend Lord Peston in an intervention pointed out the major problem. Given that there is no equivalent to the public lending right—and I thought that the Secretary of State at certain points was making an excellent argument against the public lending righ—the problem is that home taping is unregularised and, where it breaches copyright, is illegal. The Secretary of State pointed out clearly that he intends that to remain the situation. Just as we find the present balance in Sunday trading difficult to accept, so we find this difficult to accept. We find it almost impossible to accept that Members of the Committee can say, "This is fine, it will remain illegal", and the noble Lord, Lord Donaldson of Kingsbridge will continue to collect his tapes, possibly illegally, but there will remain some right of some copyright owner at some future date—
If I may make the situation clear, from my point of view it is a matter of years in prison. I understood the Secretary of State to say very clearly that it is illegal to copy on to tape from record and to copy video from television. It is clearly stated in the Bill that private taping is legal. Am I right or wrong?
I am grateful to the noble Lord for his intervention. Perhaps I may continue while the Secretary of State considers the point that he has raised. The noble Lord has some problems about the copyright of a broadcast and infringing copyright in a broadcast. The Secretary of State will no doubt give the Committee the definitive view.Of the amendments before the Committee the amendment of my noble friend Lord Willis is the one that I am inclined to favour on the grounds that it includes video tapes. I believe that that technology, as my noble friend said, will become more prevalent in future and we must do something about it. As Members have said repeatedly in Committee, the Bill will have to last us for many years—there will not be another such for 20 or 30 years at least. I am sure that Members of the Committee will join me in hoping that that is correct. Therefore, as the noble Lord, Lord Beaverbrook, has said many times, we must try to get it right. The balance is very fine, but government after all is the art of choosing the least undesirable option. We too have to make up our minds. I believe that any solution of its very nature is bound to be blanket and somewhat unsatisfactory. We conclude that we shall support my noble friend Lord Willis in his amendment. However, our support is obviously based on the position that home taping should be legalised and that those whose welfare is diminished by such a levy should be properly catered for. I recognise the points made by the noble Lord, Lord Kilmarnock, and the Secretary of State on how difficult it has been—we too have been advised of the difficulty—to find some accommodation for the blind. I hope very much that there can be an arrangement. Indeed, I hope that my noble friend Lord Willis, who is more expert in the matter than I am, can make a proposal to help the Secretary of State. I believe that we should support my noble friend not just because we wish to support the record companies—that does not seem to be the basis of a serious argument—or indeed the high profile pop singers, who might do well out of such a levy or royalty, but to support the lower paid musicians and authors who need this form of encouragement. I believe that we have to consider the trend towards monopoly among record shops which gives rise to particular problems to independent labels. Any scheme that might give some encouragement to the independent labels would have the characteristics for which we should look. The noble Lord, Lord Auckland, referred to young musicians. If there were a scheme for them, we should like to consider it. Above all we feel that the present state of the law cannot continue. The Government were right on balance the first time around. From the Opposition, we propose to support my noble friend Lord Willis in his amendment.
A moment of reflection has enabled me to assure the noble Lord, Lord Donaldson of Kingsbridge, that it is perfectly legal to tape at home where no copyright material is involved. Thus all Gilbert and Sullivan is safe hut, alas, where copyright material is involved, it is illegal to tape it at home.Perhaps I may reply to a point raised by the noble Lord, Lord Williams of Elvel. If we were to impose such a tax and anything were to be left over after the administrative costs had been deducted, in equity it should surely go to those who have sold the most records or earned the most. Little indeed would go to lower paid musicians. Most would go to those who do the best and sell the best. To do it any other way would be piling one inequity on another. I do not think that we can see any way in which to overcome the difficulty of exempting the payment of a levy to those who are short sighted, partially sighted or blind. Other categories have been mentioned for whom tapes are used for non-copying purposes, and there is the use of scientific research. In any event, what would be done with the proceeds of the levy?
The noble Lord has said that Gilbert and Sullivan being out of copyright it would be within the law to tape it. A production of Gilbert and Sullivan, say, in modern dress with specific cuts and alterations to the text surely is in copyright. Therefore, my noble friend Lord Donaldson of Kingsbridge will be back in prison for another long term—despite the efforts that he has made to make it more comfortable.
Let me at least assure the noble Lord, Lord Donaldson, that it is not a criminal offence at present, nor will it be. To my knowledge he will not have to go to prison.
The noble Lord, Lord Donaldson, might not go to gaol but he might get into some kind of bother. The point is that Gilbert and Sullivan as such is out of copyright but later productions are not—for example, a television production or a film. Were the noble Lord to tape that, he would be in some kind of jeopardy—not gaol perhaps or discomfort, but at least some kind of embarrassment.
I prefer Bertha Lewis and Henry Lytton to anybody singing today!
It just shows how complicated the present situation is. I can only wish the noble Lord, Lord Donaldson, and his advisers the best of luck in finding out whether he is within or without the law.I am grateful to my noble friend the Secretary of State for having put the position clearly. He was very fair about it. He said that this was a dilemma and that the Government had changed their mind. The noble Lord, Lord Williams of Elvel, tried to shove a pitchfork between me and my noble friend because he said that I was complaining that the Government had changed their mind. I did not complain; I congratulated them on doing so, and I looked forward with anticipation to their doing so again. In fact I think that they were correct, but there are one or two points which need to be made clear. My noble friend said that this was the imposition of a tax. It is not a tax; a tax goes to the Government. This is a royalty which would be distributed to those people who had the copyright. My noble friend inferred that there would not be very much left after the collection of this tax, as he put it. My information is that the collecting societies would collect the royalty. This is not new; it has been done frequently before and is done at present. The cost of the collection would be about 7 per cent. I do not think that that is a difficulty. My noble friend, and the noble Lord, Lord Kilmarnock, quite rightly referred to the difficulties of the blind. Both noble Lords were entirely correct to do so because special circumstances apply to the blind. Where talking books, or tapes used for recording books, are used the proposal is that they would not be subject to a levy. However, that does not mean that a blind person who wishes to purchase a tape for playing in his home would not have to pay the levy like anybody else. Let us get this into perspective. The blank tapes cost about £1. The proposed levy is 10 per cent.; that is 10p per tape. The average number of blank tapes that people buy in the course of a year is eight. If the blind were to buy twice that number—that is 16 tapes—the cost per year in levy would be £1.60. It is not a great deal.
Will the noble Lord allow me to intervene? Perhaps I may give a small statistic. There are 100,000 blind people who are too poor to pay a tax. Some of them make very considerable use of tapes. Therefore this additional 10p on each tape would make a considerable difference to their circumstances.
That comes back to the remark of the Secretary of State when he said that this will be an additional tax. My understanding is that the profit made on blank tapes is about three times that which is made on recorded tapes before the levy. Even if a levy were introduced, the profit on blank tapes would still be almost twice that on recorded tapes. Therefore I do not believe that there is any likelihood of the cost of the tapes increasing.When the noble and learned Lord, Lord Denning, referred to the fact that home-taping was not illegal, I listened with the greatest respect, as everyone always does to the noble and learned Lord. Had he been a colleague of mine of the same age, I should have said that he had got it wrong. However, as it was the noble and learned Lord, I can only say that I heard his analysis and his conclusions with interest. He referred to Gilbert and Sullivan. We have discussed whether or not it is copyright. I do not know the answer. If the noble and learned Lord had been a little more up-to-date and had referred. for instance, to Andrew Lloyd Webber who wrote "The Phantom of the Opera" and that had been recorded, there would be an element of copyright. If one looks at the other end of the artistic scale and one thinks of that young lady, Madonna—whose attributes seem to extend a good deal beyond the confines of the microphone—
But those are not copyright!
if that young lady, and others like her, were to create music, and then found that the number of home copies was six times the number of records sold through the shops. I think that there would be a legitimate cause for complaint. These people would say, "Here we are providing the music and the records and we are getting nothing for it."My noble friend Lord Auckland asks, "It is all very fine, but are the young artists going to receive any of this levy?" The answer is that the levy goes to the recording companies or the music publishers. The artists will get the benefit from that in relation to the contract which they have with those recording or music houses. Perhaps I may remind Members of the Committee that 90 million of these blank tapes are imported every year. Independent analysis says that 90 per cent. of them are used for home-recording. The proposed levy is relatively modest. I entirely accept that there is an element of injustice here. My noble friend the Secretary of State said that we must achieve a balance of justice. He was not convinced that the public interest in the round would benefit from this. I believe that the public interest in the round would not be adversely affected. However, those who create the music and whose work is in such demand are adversely affected. The Government's behaviour has been similar to that of a metronome which swung one way and the other. I hope that my noble friend can say that it will swing back. If he were to give me a nod of assent that he will consider this matter again I should be delighted to withdraw the amendment. There is nothing party political about this issue. It is merely a question of what is fair or right. I hope that my noble friend will look at the matter again.
Before my noble friend sits down, he did not cover the point raised by my noble friend Lord Caldecote that industry has a great range of tapes for recording which have nothing to do with copyright. Does he say that it pays a levy which then goes to the recording companies?
That entirely depends on the nature of the tape that is produced. Those tapes that are used, for instance, on dictaphones and recording machines, which people use in their businesses, would not be covered.
We have been talking a great deal about getting the balance right. We all want to get the balance right and we all have the normal sympathy for the visually handicapped. The Government have advanced as one of their most powerful arguments that they are putting the balance on the side of the visually handicapped—because they apparently cannot solve that problem. They are inflicting a great injustice upon the thousands of composers, writers and so on who are involved in this constant, ongoing theft of their copyright. That cannot be right.I speak as a president of a collecting society for authors. We believe that we can work out a system to ensure that visually handicapped persons are not inconvenienced by the kind of royalty about which we are talking. We do not see any real problem if there is goodwill on both sides. I have a slightly different approach from that of the noble Earl, Lord Ferrers. He says that the money from the royalty would go to the record companies. Under my amendment it would be collected by collecting societies who would divide it up. Some of the money would go to composers, lyricists and so on. Not all of it would go to the record companies. I am not in the business of ensuring that all the money goes to the record companies. Under the German scheme—and this answers a point that other noble Lords made—25 per cent. of the proposed levy in Germany is set aside by the society that collects it for the promotion of young artists, new concerts, new music and that kind of thing. I believe that that would he a very good scheme to have here. The attitude of many people is summed up by my noble friend Lord Monckton who asked, "Why cannot I go into my house and record a piece of music if I wish to? "I can only say to the noble Viscount, and other noble Lords, that you are not talking about your property but about mine. You are talking about the property of other people out there. If I came to borrow your lawnmower week after week you would get fed up with it and would have to buy a new one. However, you keep borrowing our music, you keep borrowing our songs, you keep borrowing our lyrics without paying a penny. That is wrong and that is what my amendment is set out for.
I am grateful to my noble friend Lord Ferrers; but I fear that I must disagree with him on this occasion because the levy he suggests is a tax. Let me explain. If the scheme is in existence and I buy a tape to use at home on my telephone answering machine, I would have to pay a levy of 10 per cent. on something that does no more than receive messages. If I am part of a university and buy tapes to use in scientific recording or to use only for non-copyright material, I shall time after time make a payment for something that I have no intention of doing, nor indeed will do—that is, using it to record copyright material. It is estimated that even if the tape levy were in existence, the gross revenue from it would be £7 million a year.
Surely the noble Lord has a very long telephone answering machine tape. I understood that the levy would apply only on tapes of over 35-minutes' duration. Is that correct?
I have a very long tape. I must have very many messages, but the machine takes a tape that lasts for more than 35 minutes, so indeed do all the telephone answering machine tapes that actually record messages. The estimated revenue before administrative expenses would be £7 million a year. I do not know what it would be afterwards—perhaps three-quarters or half that amount. The 1986 sales of the United Kingdom record industry were £425 million at trade prices and very much more at retail prices. As we are talking about retail prices, the figure must be close to double that so it would be £600 or £700 million. So the levy is a very small amount of money.I can certainly understand that we should pay a copyright fee; but is it right that we should take money from people and then distribute it to whom we please, even if those causes were deserving as in the case of young people? That is benevolent, but surely not in the case of a levy which is enforced by the Government on all people who buy a product which may not even be used for such purposes. I fear that I cannot tell my noble friend that we shall look again at this. We have considered this issue with the appropriate authorities, and we cannot see that in all justice we can add to the burdens of those who rely on tapes either for their entertainment or necessity in the case of those who are poorly sighted.
On Question, Whether the said amendment (No. 174) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 129.
DIVISION NO. 1
|Allen of Abbeydale, L.||Bonham-Carter, L.|
|Amherst, E.||Brentford, V.|
|Attlee, E.||Brougham and Vaux, L.|
|Avebury, L.||Cledwyn of Penrhos, L.|
|Banks, L.||David, B.|
|Beloff, L.||Dean of Beswick, L.|
|Birk, B.||Donaldson of Kingsbridge, L|
|Blackstone. B.||Dormand of Easington. L.|
|Elwyn-Jones, L.||Mersey, V.|
|Ewart-Biggs, B.||Morris, L.|
|Falkland, V.||Morton of Shuna, L.|
|Ferrers, E. [Teller.]||Nicol, B.|
|Gallacher, L.||Peston, L.|
|Graham of Edmonton, L.||Phillips, B.|
|Gregson, L.||Pitt of Hampstead, L.|
|Grimond, L.||Ponsonby of Shulbrede, L.|
|Hampton, L.||Rea, L.|
|Hardinge of Penshurst, L.||Ritchie of Dundee, L.|
|Harris of Greenwich, L.||Rugby, L.|
|Hatch of Lusby, L.||Seear, B.|
|Hooson, L.||Silkin of Dulwich, L.|
|Houghton of Sowerby, L.||Simon, V.|
|Howie of Troon, L.||Simon of Glaisdale, L.|
|Hutchinson of Lullington, L.||Somers, L.|
|Jacques, L.||Stewart of Fulham, L.|
|Jeger, B.||Strabolgi, L.|
|Jenkins of Putney, L.||Tordoff, L.|
|Kagan, L.||Wallace of Coslany, L.|
|Kearton, L.||Wells-Pestell, L.|
|Kilbracken, L.||White, B.|
|Llewelyn-Davies of Hastoe, B.||Williams of Elvel, L.|
|Lloyd of Hampstead, L.||Willis, L. [Teller.]|
|Lloyd of Kilgerran, L.||Winchilsea and Nottingham, E.|
|Longford, E.||Winterbottom, L.|
|McGregor of Durris, L.||Wise, L.|
|McIntosh of Haringey, L.||Ypres, E.|
|Mackie of Benshie, L.|
|Abinger, L.||Fortescue, E.|
|Airey of Abingdon, B.||Fraser of Kilmorack, L.|
|Aldington, L.||Greenway, L.|
|Alexander of Tunis, E.||Hailsham of Saint|
|Alport, L.||Marylebone, L.|
|Ampthill, L.||Hanworth, V.|
|Arran, E.||Harvington, L.|
|Auckland, L.||Hayter, L.|
|Aylestone, L.||Henley, L.|
|Bathurst, E.||Hertford, M.|
|Beaverbrook, L.||Hesketh, L.|
|Belhaven and Stenton, L.||Home of the Hirsel, L.|
|Belstead, L.||Hood, V.|
|Bessborough, E.||Hooper, B.|
|Bolton, L.||Hylton-Foster, B.|
|Brabazon of Tara, L.||Ingrow, L.|
|Brain, L.||Ironside, L.|
|Broxbourne, L.||Johnston of Rockport, L.|
|Bruce-Gardyne, L.||Kimball, L.|
|Butterworth, L.||Lauderdale, E.|
|Caldecote, V.||Lawrence, L.|
|Cameron of Lochbroom, L.||Lindsay, E.|
|Campbell of Alloway, L.||Long, V.|
|Carnegy of Lour, B.||Lucas of Chilworth, L.|
|Carnock, L.||Luke, L.|
|Cawley, L.||Marley, L.|
|Chapple, L.||Maude of Stratford-upon-|
|Cocks of Hartcliffe, L.||Avon, L.|
|Constantine of Stanmore, L.||Merrivale, L.|
|Cork and Orrery, E.||Milverton, L.|
|Cottesloe, L.||Monckton of Brenchley, V.|
|Cox, B.||Monson, L.|
|Craigmyle, L.||Montgomery of Alamein, V|
|Craigton, L.||Mottistone, L.|
|Crickhowell, L.||Munster, E.|
|Cullen of Ashbourne, L.||Murton of Lindisfarne, L.|
|Dacre of Glanton, L.||Nelson, E.|
|Davidson, V. [Teller.]||Norrie, L.|
|De Freyne, L.||Nugent of Guildford, L.|
|De La Warr, E.||Onslow, E.|
|Denham, L. [Teller.]||Orkney, E.|
|Denning, L.||Orr-Ewing, L.|
|Dilhorne, V.||Pender, L.|
|Dowding, L.||Pym, L.|
|Dundee, E.||Rankeillour, L.|
|Elibank, L.||Reay, L.|
|Elles, B.||Reilly, L.|
|Elliot of Harwood, B.||Renton, L.|
|Erroll of Hale, L.||Rippon of Hexham, L.|
|Rochdale, V.||Strathcona and Mount Royal, L.|
|St. Davids, V.||Strathspey, L.|
|Saint Oswald, L.||Swansea, L.|
|Salisbury, M.||Teviot, L.|
|Saltoun of Abernethy, Ly.||Teynham, L.|
|Sanderson of Bowden, L.||Thomas of Gwydir, L.|
|Sandford, L.||Thorneycroft, L.|
|Seebohm, L.||Trafford, L.|
|Selkirk, E.||Trefgarne, L.|
|Sempill, Ly.||Trumpington, B.|
|Shannon, E.||Vaux of Harrowden, L.|
|Sharpies, B.||Ward of Witley, V.|
|Shaughnessy, L.||Whitelaw, V.|
|Skelmersdale, L.||Wolfson, L.|
|Stanley of Alderley, L.||Young, B.|
|Stoddart of Swindon, L.||Young of Graffham, L.|
Resolved in the negative, and amendment disagreed to accordingly.
had given notice of his intention to move Amendment No. 174A:
After Clause 63, insert the following new clause:
(" Future subordinate legislation.
Within three months of the date of passing of this Act, the Secretary of State shall by order made by statutory instrument implement Chapter 6 of the White Paper "Intellectual Property and Innovation" of April 1986 (Cmnd. 9712).").
The noble Lord said: In deference to the advice given to us by the Government Chief Whip, it will be my intention, if the Committee approves, not to move this amendment in favour of the amendment to follow in the name of my noble friend.
[ Amendment No. 174A not moved.]
[ Amendments Nos. 174B and 174C not moved.]
Clause 64 [ Free public showing or playing broadcast or cable programmes]:
moved Amendment No. 174D.
Page 24, line 34, leave out from ("part") to end of line 38.
The noble Lord said: This is a relatively small point compared with the point that was recently discussed in Committee. It concerns the free public showing or playing of broadcast or cable programmes. It is difficult for us to understand what is meant by Clause 64(2)(b).
The Bill as drafted says:
"The audience shall be treated as having paid for admission to a place"—
and I shall leave out paragraph (a)—
"(b) If goods or services are supplied at that place … at prices exceeding those usually charged there and which are partly attributable to the facilities afforded for seeing or hearing the broadcast or programme".
We do not understand how you can partly attribute a surcharge to a particular broadcast or event. We are not clear whether this is confined to one bar in a cinema or to the hall in which the event is taking place, or indeed to a whole complex of cinemas or halls in one of which an infringing broadcast is taking place. In short, this clause seems to lack a great deal of clarity. There is a need both for a government explanation of what it is all about and perhaps some redrafting. I beg to move.
I should like briefly to support my noble friend not only for the reasons he has given but also because the clause seems to be exceptionally badly drafted. I refer to the words,
It is surely not the prices that are attributable to the facilities, as we are told; it is the fact that the prices are high that is attributable to those facilities. As it is worded at present I do not think it makes sense."at prices exceeding those usually charged there and which are partly attributable".
Clause 64 provides that where an audience has not paid for admission a broadcast or cable programme may be shown or played in public without infringing copyright in the broadcast or cable programme itself or in any sound recording or film included in it. The exception does not apply with respect to any copyright in any play or music which may be contained in such a broadcast or cable programme and a copyright licence will in the normal way be required by the Performing Rights Society. Our obligations under the Berne Convention do not permit the exception to be extended to dramatic or musical works. Without the exception it would be necessary for anyone playing a radio or providing a television set in, for example, a shop or a pub to obtain a copyright licence not only from the Performing Rights Society but also from the broadcaster or cable company and from any owner of copyright in records or films that might be included in the broadcast. We believe this would be unreasonably burdensome to the public.The exception must not, however, be abused. The two criteria in subsection (2) are designed to prevent this. Without them those playing radio or television for the benefit of their clientele could profit from this activity by levying charges indirectly without passing anything on to the copyright owners involved other than the owner of copyright in any dramatic or musical works. The criterion in paragraph (b) is surely as necessary to prevent this as that in paragraph (a).
Yes, but what does it mean?
The noble Lord, Lord Williams, mentioned an example of a theatre charging for drinks in a bar. If those drinks are charged at a normal rate there is no effect; but where for instance there was an attempt to get around copyright by not charging for admission but instead charging a very high price for, let us say, a compulsory drink or a compulsory ice-cream, this would provide a way around having to obtain copyright.
It cannot be said that the prices are attributable to the facilities provided. It is the fact that the prices are so high that is attributable. The phrase "and which" is poor English. Will the noble Lord consider looking at the drafting to improve the sense of the provision before the next stage?
I am sorry to hold up the noble Lord. I am as anxious as anybody to get on with the Bill. If the place in this clause charges prices exceeding those usually charged there, then it may be an infringement. If it is perpetually infringing the copyright and always charging at a high level, it is not putting a surcharge on its usual price. That is one of the problems. The second problem is that I do not understand what "partly attributable" means.
As to how a low price is partly attributable to a particular broadcast, that is not what the clause says. It refers to prices being partly attributable to facilities. In other words, if a price is charged to pay both for food and the facilities, that is caught by the provision. As to a place with several separate halls, each is a separate place and can be considered separately.The drafting of paragraph (b) is, I admit, taken unchanged from the 1956 Act. Certainly if it were in some way unworkable we could consider changing it, but the wording adopted in the Bill has worked perfectly well for all these years.
This is really a question more than anything else to the Minister. Is there not here a problem with something we discussed earlier in the Bill about public performance and the definition of what is a public performance? We have a growing situation where, apart from music being played in pubs—often to my horror—you now have television sets in pubs, and one can stay there and watch plays and everything else.There is an obvious anomaly in the sense that you have to have a PRS licence to have a public performance of music but you do not have to have a licence for the other material that is incorported in the recording. There is an anomaly here and an injustice, and I should like to ask the Minister to look into that.
I shall look carefully at what the noble Lord has said, but this is really a fairly narrow exception, and subsection (2)(b) is designed to stop a possible avoidance of having to obtain copyright to show a broadcast or cable programme.
Following the point made by the noble Lord, Lord Willis, the noble Lord, Lord Beaverbrook, was kind enough to say that he will look at the point. Perhaps he could send a letter—I realise that he is going to have to send rather a large number in the next few weeks—because I do not think the point is quite as narrow as he suggested. There is a point of some significance here and we would all welcome a clear definition of the Government's position in good time before the Report stage.
If a change in the clause will stop us having our eardrums damaged by this ghastly Muzak which we now get in every restaurant and every pub, I should be delighted to support it.
I am glad that the noble Lord has undertaken to have another look at it and perhaps write to us before Report stage. I hope he will recognise that although this is in the 1956 Act it has hardly ever been invoked. Just because something is in the 1956 Act does not mean that it is sacrosanct.
Before the noble Lord withdraws his amendment, perhaps I may say that I shall write to noble Lords concerned to explain our thinking on this. I also undertake to look at the wording in paragraph (b), but I believe that the paragraph is necessary in order to stop a possible avoidance in this exception.
I take the point that a paragraph is necessary. It is not that I am trying to delete the paragraph. I believe that the paragraph is rather badly drafted and does not cover the point raised in this short debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 64 agreed to.
Clause 65 [ Reception and retransmission of broadcast in cable programme service]:
[ Amendment No. 174E not moved.]
moved Amendment No. 175:
Page 25, line 31, leave out from ("but") to end of line 34 and insert—
("(i) where the making of the broadcast was not an infringement of the copyright in the work, the owner of the copyright shall be entitled in respect of the retransmission to be paid equitable remuneration by the person making the broadcast; and any dispute regarding the amount of remuneration payable may be referred to the Copyright Tribunal;
(ii) where the making of the broadcast was an infringement of the copyright in the work, the fact that the broadcast was retransmitted as a programme in a cable programme service shall be taken into account in assessing the damages for that infringement.").
The noble Lord said: This amendment tries to clear up what we regard as a rather important point. Under the provisions of Article 11 of the Berne Convention a compulsory licence in respect of the retransmission by cable of a broadcast of a work is permitted, subject to the right of the author to receive equitable remuneration in respect of such use. But under the provisions of the Bill, which correspond to Section 40 of the 1956 Act, the copyright owner's entitlement to such remuneration is not made clear.
The amendment proposed would clarify the matter. It should receive the support of the Government because it would comply with their view, in circumstances covered by this clause, that such remuneration should be paid by the broadcaster and not by the operator of the cable programme service. I beg to move.
We recognise that copyright owners have never been happy with the provision of the 1956 Act which is re-enacted in subsection (3) of Clause 65. The substance of this provision, as it now stands, is that where a broadcast made from the United Kingdom is simultaneously retransmitted by cable within the intended reception area of the original broadcast, or in pursuance of what is known as a "must carry" requirement imposed on a cable programme service by the cable authority, the provider of the cable programme service does not have to obtain consent from the copyright owners of works included in the broadcast or pay them royalties for the retransmission.This is a matter on which I am afraid we continue to differ from the rights owners concerned. Our view is, and always has been, that a cable retransmission within the intended reception area of the broadcast is not a genuinely new or separate communication to the public in terms of the Berne Convention. The potential audience is exactly the same and will normally have the choice as to whether to receive the programme by cable or off-air. The rights owners are normally paid by the broadcaster in respect of the total audience he expects his broadcast to reach. If cable operators were also liable to pay the owner of rights in the programme content, this would be double payment for the same transmission to the same potential audience. The noble Lord's amendment seeks to give the rights owners a formal claim for remuneration in respect of cable retransmission, not against the cable operator but against the broadcaster. I find it hard to see what this would achieve. The contract of the rights owner is with the broadcaster anyway and will normally, or should, provide for payment in respect of the total audience reached by the broadcast. As I have said, cable retransmission within a reception area does not in any way enlarge this audience. Where, as with satellite broadasts, the broadcaster can control retransmission, then the terms agreed between broadcaster and copyright owners can reflect any payment the former can obtain from cable operators. As to broadcasts retransmitted under "must-carry" requirements of the cable authority, these will almost always be national BBC and IBA services which in any case would benefit from the in-area exception I have described.
That is an interesting answer, but does it really fit the Berne Convention? That says that the authors are to be entitled to equitable remuneration for any communication to the public by wire, or by rebroadcasting of the broadcast of the work, where this communication is made by an organisation other than the original one.It seemed to me that what the Minister said about the area was precisely off the point. The point is that there is rebroadcasting by a different organisation, and therefore the Berne Convention would imply that something had to be done.
The noble Lord argues that our obligations under Article 11bis(2) of the Berne Convention oblige us to ensure that rights owners can receive equitable remeneration for any cable retransmission of a broadcast. My answer to that point is the one I have given. Retransmissions in area simply cannot be regarded as separate communications to the public of the kind that Article 11bis(2) is designed to cover. Where there is a cable retransmission beyond the intended reception area of the broadcast then this ceases to be so, except where the "must carry" obligation applies and the Bill gives copyright owners as well as broadcasters a right to control retransmission.
I am not entirely convinced by that argument. The retransmission need not necessarily be to the same audience. You have a classic example with BBC I and BBC2. They repeat a programme and it goes to the same national audience, but we know that in fact it is a different audience which listens to the play, or whatever it may be. This is an important point and the problem is going to grow worse in the next year or so. However, I thank the noble Lord for his reply, with which I am not entirely satisfied, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 65 shall stand part of the Bill?
I was in my place in time to move my amendment to Clause 65.
On a point of order, the noble Lord was called and was not here, and his amendment cannot therefore be moved, in my submission to the Committee.
I can see that I was mistaken, and I withdraw.
Clause 65 agreed to.
Clauses 66 and 67 agreed to.
moved Amendment No. 175A:
After Clause 67, insert the following new clause:
(" Teletext sub-titles.
—(1) Where a work, or part of a work, is included in a television broadcast in the form of sounds, copyright in the work is not infringed by the inclusion in the broadcast of teletext subtitles representing those sounds.
(2) Sub-section (1) shall not apply where the sounds were included in the broadcast without the licence of the copyright owner.'')
The noble Lord said: I beg to move. Perhaps I may preface my remarks about this amendment in this way. During the next few hours I shall be presenting, I hope briefly and succinctly, a number of amendments dealing with difficulties for broadcasters that arise from the Bill in its present form. I should say that in this connection I am being advised jointly by lawyers from the BBC and ITV.
This present amendment deals with problems arising with teletext sub-titles in the course of broadcasting. As this Committee knows, it is now technically feasible for broadcasters to add teletext sub-titles to television programmes, so that the audience has the opportunity to read as well as to hear what is being said, or an abbreviated version thereof.
It would be helpful for the broadcasting institutions if the legislation could provide that the addition of such sub-titles is not an infringement of the copyright, as, for instance, when the script of a dramatist is being presented. I beg to move.
In Clause 65 we have made provisions for the sub-titling of recordings of television broadcasts. However, this is restricted to designated non-profit making bodies who wish to make and sub-title recordings for deaf people. This very narrow exception to copyright only applies to the extent that licensing is not available.We introduce this provision in order to relieve the bodies concerned not from copyright constraint but from the difficulties they were experiencing in getting the necessary clearances. I do not think the broadcasters face the same difficulties. They have to obtain the right to broadcast the work in the first place and therefore they know who the copyright owner is. If they wish to sub-title the work then it is open to them to include this in the licensing negotations. I do not think that we should give broadcasters an entitlement to sub-title. There may be copyright owners, particularly of feature films, who do not want this. Some film directors, I suspect, may regard such sub-titling as an unjustified modification of their work. Therefore, if it were done badly they might well have a case under the provisions of this Bill.
I am very grateful to the noble Lord the Minister and I have heard what he said. I will accordingly take advice upon it. In these circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 68 agreed to.
Clause 69 [ Right to be identified as author or director]:
moved Amendment No. 176:
Page 26, line 29, leave out ("but the right is not infringed unless it has been asserted in accordance with section 70,")
The noble Baroness said: We now come to a very important and new concept in the Bill which deals with moral rights. Although this has been in existence in other countries in Europe for some time it is the first time it has appeared in any legislation in this country. The concept of moral rights and the provisions to implement them are therefore very welcome.
It is important that the United Kingdom honours its obligation under the Berne Convention, especially Article 6 bis, which states.
"Independently of the authors economic right, and even after the transfer of the said right, the author should have the right to claim authorship of the work and to object to any distortion, mutilation or other modification",
and so it goes on, though I will not read it all out.
However, as it stands now in the Bill, Clause 69 confers on authors the new moral right to be identified as authors of their work—generally known as the right of paternity—but makes the right subject to a formal assertion in accordance with Clause 70 which is the next clause.
Our amendment, in the name of my noble friend Lord Morton of Shuna and myself, is intended to avoid the rights of paternity being subject to assertion. Under the Berne Convention it has always been accepted that the existence of copyright should not be subject to any formalities such as registration, claims and so forth. Under Clause 1 of the Bill, copyright simply subsists in literary, dramatic, musical and other works. In the same way, moral rights—which are quite separate from copyright—should vest automatically in the author and not be subject to any formalities.
Therefore, we find it inappropriate that the right of paternity granted under Clause 69 should not take effect unless formally asserted under Clause 70: when we come to that, as Members of the Committee will see, we intend to oppose the clause. Many of the authors for whom moral rights are being enacted may be inexperienced, unbusinesslike or in a weak bargaining position; they may either be ignorant of the need for assertion of rights or feel inhibited and under pressure not to do so. In exceptional cases—for example, when a large number of authors contribute to the compilation of a reference work or an encyclopaedia—the consent of the authors to their names not appearing can easily be sought under Clause 77, to which we shall come later. In any case, it is not clear how authors would assert their rights in practice; there is nothing to explain that at all. The very fact that you have to assert rights, in our submission, puts up a barrier against the automatic coming into effect which is really what is intended, and quite clearly spelt out, in the Berne Convention.
For example, if someone sells copyright for the work to be used, if there is no formal assertion no credit need be given and the author cannot do anything about it—that is, if a formal assertion is insisted upon by the user. But if there is no formal assertion the author should automatically have the moral right and be entitled to the credit.
I find it difficult to understand why the Government should insist on this being in the Bill, although I think, if I remember rightly, that in winding up on Second Reading the Minister said that this would really only apply to a small minority of cases, or words to that effect. I do not think that this is necessarily true numerically. Nor do I think it right to put something into legislation even if it is going to affect only a few people.
I hope that we shall get a satisfactory reply on this matter. I beg to move.
I should like to say a word upon this. Moral right is now being introduced into our law. I do not like the word "moral" as opposed to a simple right. We say "moral right" about things which are not rights at all but the word comes from the Berne Convention or from the French "droit moral", so we are bound with it. But, having got this right to be identified as the author or director of a work, surely it is quite right—and will soon get known throughout the profession—that if a man wants to be identified he must tell the producer of whatever it may be that he wants to be identified to show his part in the work.I should have thought that there would be no difficulty about it: unless he asserts this right the producer can go on without particularly naming him. I should have thought that it would be quite a simple exception to apply, and therefore I do not support the amendment.
It is with trepidation that I point out to the noble and learned Lord that, as I understand the matter, the concept of moral rights is in existence in France and other countries in Europe. The formal necessity of assertion is not needed and it has not been found to be necessary.
I should like to endorse what my noble and learned friend on the Cross Benches has said. As my noble friend on the Front Bench knows, I have been approached by the publishers of a reputable magazine. Today I received a further letter from an association of magazine publishers. They are disturbed even at the extent to which the Bill goes in its present form. It may be that their fears are groundless because they are complaining about the terms in which the Government have replied to their representation. However, I think that if the amendment were passed they would certainly have legitimate ground for disquiet.Basically, their complaint lies in the difficulty of a composite work. When a magazine, particularly a political or economic magazine, publishes a weekly series of feature articles under the name of the editor of the magazine, it is frequently the composite work of a considerable number of authors whom, individually, it is impossible to identify. I am sure that if they were able to speak with their own voice, the publishers who have already complained to me about the Bill in its present form would be even more disquieted should they be told that at any time within 50 years of the publication of the weekly number (or whatever it may be) one of the composite authors of one of those works could demand his allegedly moral right to be identified. They would find life impossible.
I too have received a letter from, I suspect, the same publication as the noble and learned Lord, Lord Hailsham. They have expressed concern about the matter and they have expressed deep concern as regards this particular amendment. It would create intolerable problems for them.Having declared an interest, in that some years ago I was employed by the particular publication, I think that it would be a great pity if high-quality publications of this kind were put in jeopardy, as they could he if the amendment were to be added to the Bill.
I should like to add a few words as regards the amendment. I have also received a communication about this matter from the managing director of no less a periodical than the Economist. Undoubtedly, as the noble and learned Lord, Lord Hailsham, has pointed out, intolerable complications would be created if it were applied to newspapers, magazines and composite works.I should like to point out that an attempt has been made by another noble Lord, under Amendment No. 189A, which we have not yet reached, to deal with the problem by means of excepting this type of publication. The question still remains as to whether the moral right should not be acceptable, subject to the amendment that is being moved—that is, that it should remain acceptable on the footing that a further exception is made in relation to such newspapers and periodicals. Presumably we shall reach that amendment in due course.
I should like to express my support for what has been said by the noble and learned Lord, Lord Denning, as regards calling the rights "moral". I do not see that "moral" is the right word to use; I think that the word "intellectual", or some other word, would be more appropriate and I hope it will be changed.I am in favour of my noble friend's amendment because I should prefer there not to be any need for the author to assert his rights. However, there are certain difficulties, although I do not believe that they will matter when the writer, illustrator or photographer is an employed person working on the staff of a newspaper or magazine. However, it would cause problems to daily newspapers where outside contributors and freelance writers are working under pressure. It would mean that in cases where a photograph of an event that had just taken place was sent in a taxi to the picture desk, or a news story or article is telephoned to the news desk without the reporter going near the office, the story or photograph would be required to contain a byline. Even if it were a small picture or a four-line story, it must always state the author, whereas at present that is not necessary because he would not have asserted the right to have that byline. Although I agree with the principle of the amendment I feel that it needs a little further thought.
I should like to support the amendment and disagree profoundly with the noble and learned Lords who have spoken so far. Concentration has been on the written word and the magazine article, etc. I should like to consider the amendment from the artist's viewpoint.I find it extremely difficult to understand why the onus should shift to the author of the work when it comes to the moral right. "Moral" right may not be a perfect word but it follows droit moral and surely it makes the position easier for everyone if the same name is retained in our law. In the Bill the added right is given to the artist and the author but then it is immediately taken away in the sense of making it extremely difficult for him to enjoy his right at all. For the life of me, I cannot understand why the moral right, which follows the making of the work, should not be precisely the same as the copyright. Why should not a person who purchases a work of art, or comes into the possession of a work of art, be in exactly the same position as regards the onus as he would be as regards the copyright? He may not know whether the work is in copyright and he may not know who owns the copyright but if he is to make use of that work it is up to him to find out. Why should not exactly the same principle apply as regards the moral right? If an artist makes a drawing, a painting, or a sculpture, how on earth is he to assert his right in relation to a work which was put on to the market years before? How can he assert his right when a gallery comes into possession of the work and puts it on sale or into an exhibition without giving the name of the author or the artist? How can he follow the appearance of a work made years before in order to assert that right to the person who is exhibiting the work? I think that that task will be well-nigh impossible for the artist. The artist may assert the right when he gets rid of the work, of course. The point will arise in later clauses, but will the obligation be on everyone who has the work from then on to assert the right from one person to another? Suppose the artist gives one of his works to someone who hangs it on his wall for 20 years before deciding to sell it. Perhaps by that time the artist has become a famous figure and the work is put on show in an exhibition in a gallery or museum under someone else's name, or not under the name of the artist. How is the artist to know that somewhere in the world the work is being shown? Surely the onus should be on the person who shows the work. If I may say so to both noble and learned Lords who have spoken, we are talking about a moral right. The extent to which it would be extremely difficult to find out who the author was on the composite work and so on would be taken into account if someone were to assert his moral right at a very late date when in a composite work, of which his part was only very very small. There would be no damages, or it would be taken into account in the circumstances. I strongly support this amendment.
Perhaps I may also speak in support of this amendment. To me the difficulty is the absence anywhere in the Bill of any definition of "assertion". We are told that the right is not infringed unless it has been asserted in accordance with Section 70. Section 70 states various ways in which it may be asserted—and we shall come to that—but nobody tells us what "assertion" is. Surely it would help people dealing with a totally new right to know—and I am deliberately not using the word "moral" because I think that that may convey something different—what this assertion is. If, for example, somebody writes a book and sells the copyright to a publisher, but his or her name is still on the book, is that assertion or is that not assertion? If, say, Agatha Christie had sold her copyright for a certain hook to a publisher, is she asserting her right or not asserting her right?It is far from clear, and I should have thought that the composite work argument really goes back to the old argument we had on Clause 11 about contract. I find difficulty in accepting that a composite work would be entered into without the authors having had some communication with whoever was putting together the composition.
I have substantial sympathy with my Front Bench in relation to this amendment, particularly where it refers to an author who is clearly and unmistakably identifiable.In that situation I do not think that many of us would be at all harrassed. The idea of moral right I think is a good one: that the author should be identified wherever and whenever possible; when he is clearly known and clearly identifiable he is clearly accepted as the author. None of us would object to that. However, I think the noble and learned Lord, Lord Hailsham, referred to a specific difficulty concerning the identity of authors in certain circumstances. I referred to these circumstances in earlier debates concerning magazines and periodicals, where the authorship might be multiple or composite. I do not wish to add anything to the remarks of the noble and learned Lord. However, I should like to make one reference to the remarks of the noble Lord, Lord Hutchinson of Lullington. In the examples which he cited, which I thought mainly concerned paintings and things of that sort, I should have thought the author's position could easily be protected within the provenance of the picture. The label that you stick on the back of it could cover that problem quite simply, and his worries would be dealt with I think quite succinctly there.
Labels come off.
Yes. They may have to write it on by hand or something. There may be a way of dealing with it which, in these days of high technology, would not be beyond the wit of man. I think that the provenance, in so far as provenance has a reality, could deal with that specific example, even though labels might come off.There is a further problem which we have not thought about, and it arises in this respect. We have been thinking of the author as a creative man, a writer. My Front Bench, the noble Lord, Lord Kilbracken, and others have taken that up. I entirely sympathise with their view in that respect. However, in the magazine industry there is another area of authorship, which is covered by this moral right; it concerns the whole problem of the authorship of advertisements and things of that sort. One of my magazines which was published a couple of years ago, because it was a special occasion amounted to something like 490 pages. Of that 490 pages, I am happy to say that about 250 were taken up in advertisements which were very expensive and were paid for promptly. But each of these advertisements contained an element of creativity. That element of creativity lay in the hands of the copy writers, who were authors in their own way, in the photographers, who were authors in the sense of this Bill, and in the typographers and lay-out people who produced these display advertisements, who are also copyright holders and moral right holders within the purlieus of this Bill. We are faced with the situation where either each display advertisement must itself have these attributions, or at the end of the magazine you must have a list of credit titles, rather like the films which we see nowadays where the credit titles roll on and on for several minutes at the end of the film, with suitable music, while we all wonder whether it is appropriate to leave and go home, or whether we ought to wait until the very end. That is an important issue in this respect. The amendment is right in the sympathetic view it takes of the individual author, but it is mistaken in this complicated situation to which the noble and learned Lord, Lord Hailsham, referred earlier, and to which I refer now. I think that further thought must be given to this amendment before it can be found to be acceptable. I advise my noble friend on the Front Bench to withdraw it for the moment, and to think about it before the next stage of the Bill.
As the noble Baroness, Lady Birk, has told us, Clause 69 brings us onto the very important question of moral rights. These are distinct from the economic rights which we considered in Chapter II, which are provided to enable the author to obtain remuneration for the use of his works. The moral rights will enable the author to protect his reputation.Clause 69 is concerned with what is sometimes called the 'paternity right'. It is the first of the two moral rights specified in Article 6 bis of the Berne Convention which requires that:
Clause 69 gives the author of a literary, dramatic, musical or artistic work the right to be identified as author when his work is exploited in a variety of specified ways. For example, the author will have the right to have his name on a book he has written. The right also applies to adaptations of literary, dramatic and musical works, so that, for example, the same author has the right to be associated with the dramatised version on the West End stage. However, there is to be no infringement of this right unless it is asserted in accordance with the procedures set out in Clause 70, and it is this limitation that the amendment standing in the names of the noble Lords, Lord Morton of Shuna and Lord Willis, and the noble Baroness, Lady Birk, seeks to remove. We believe that assertion is necessary so that the users of copyright material know where they stand. It is fully consistent with the Berne Convention which requires that authors should have a right to claim authorship, not an absolute right to be identified. Indeed, it is interesting in this context that the Guide to the Convention produced by the World Intellectual Property Organisation which provides a quasi-official commentary on the convention's provisions says this of Article 6 bis:"the author shall have the right to claim authoriship of the work".
Publishers and others who deal in copyright material need to know exactly what their responsibilities are in this matter. They cannot be expected to operate under a constant danger of action for infringement. Sometimes the author may not be known to them. However, once the right has been asserted, they are put on notice and must ensure that the author is appropriately identified. As a practical matter, we believe assertion is essential if Clause 69 is to work properly. This way the author gets his Berne right to claim authorship and the user knows what he has to do when that right is claimed. I was very interested in the problem raised by the noble Lord, Lord Hutchinson of Lullington. I think that this is a problem peculiar to artists, sculptors and other creators of artistic works. While I am not sympathetic to the amendment itself, I am very willing to have a look at the situation as outlined by the noble Lord, Lord Hutchinson of Lullington, to take the amendment away and see whether we can perhaps come up with something as an improvement. As regards the point raised by the noble Lord, Lord Morton of Shuna—and I think that the noble Baroness, Lady Birk, touched on this when she asked how an assertion is made—I find it difficult to sympathise with the noble Lord's problems over the meaning of the word "assert". Clause 70 sets out the ways in which the right may be asserted—claimed, in other words. In the noble Lord's Agatha Christie example, the author would need to include the assertion in the assignment; for example, "My name must be on the spine of every copy published"."This provision enshrines two of the author's prerogatives: first and foremost, to claim the paternity of his work—to assert that he is its creator".
I wonder if I may ask the Minister, arising out of the instance put by the noble Lord, Lord Hutchinson of Lullington, whether the signing of a picture or a drawing is, in the view of the Government, an assertion. If he prefers to say that he is considering the whole aspect of that matter, I should be content to leave it like that. But he may know the answer at once.
I think that the signing of an original picture would not necessarily in itself be an assertion. I think it would be similar to the author's name being on a book. And as I said, as regards the example of Agatha Christie, the author may well assert that her name must be on the spine of every copy published. That would not necessarily apply to an original picture, but it could certainly be applicable where prints are being made of an original picture, and the person who painted the original picture may well want to make some stipulation of that nature. But I think that it may well be that a signature on the original picture is an assertion; and maybe it should be.
I am most grateful to the noble Lord for the observations he made. I know that he will bear in mind in his consideration of the artist that signatures on works of art are very ephemeral things. They do not continue to stay where they are put. They are very often removed, and people who have to try to decide who painted and who is responsible for a work of art usually give very little credit to the question of whether there is a signature on the work of art, which very often turns out not to be genuine in any event. Of course, if the signature had gone that could not possibly be an assertion to the person who is in possession of the work of art.
I have not really been convinced by any of the arguments which have been deployed against this amendment. First, the Minister himself had to admit that he was not sure whether a signature on a picture or a title on a book was in itself an assertion. I should have said from reading Clause 70 that he was right. It is not necessarily so. So this means an entirely new and different act. My noble friend asked how that would be carried out, but we seem rather to be left in the air over that.Also, from my reading I do not find in the Government's White Paper the need to assert. Assertion seems to have come in later. Thirdly, this is a new concept and that is a problem. It has this name which I think some people find rather strange and do not always like—moral right. When you translate from the French it seems to come out quite differently in English. So it is a case of getting used to an entirely new concept. Noble Lords referred to letters of protest that they have received. One of the problems is unsigned articles. The Economist always has unsigned articles. This has gone on for many years and was also the case with The Times until comparatively recently. All this would be taken care of by means of contract. I assume that those writers who, even today, would rather have their names attached to an article and consider it extremely important would not write for the Economist. But if there were any form of loss, a contract between the writer and the publisher would certainly take care of that. The Minister having heard all that has been said, I hope that he will go away and look at the amendment again and see whether—perhaps between us all—he can come up with something which is not quite as harsh as this is at the moment, and make it in accordance with the Berne Convention, as it is meant to be. Also, would he look into the position if we move right away from the Berne Convention, which is exactly what we would be doing if we insisted on the right to assertion? In the meantime, and hoping that the Minister will think over all those many points, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 177:
Page 27, line 12, leave out ("or").
The noble Lord said: If I may, I will speak to Amendment No. 178 with this amendment because they go together. The point of these two amendments is to add to subsection (4) the words in Amendment No. 178 as a third heading. What we are dealing with here, provided that I still understand what we are dealing with, is the moral right of an author of an artistic work who has presumably asserted his right. He then has the right to be identified under paragraphs (a) and (b) and the new paragraph (c) reads:
"the work is recorded or transmitted by any electronic or reprographic means".
Very often, speaking about photographs, one has the situation where the identification—if that is an assertion—is on the back of the photograph, but if the photograph is being transmitted by wire it is only the front that is being transmitted. Therefore, one needs to write in somewhere that the transmission will transmit his right as well. That is the purpose of the amendment and, as artistic works can now be transmitted in this way, it is proven that the right should be protected in the same way as it is protected in paragraph (a) of subsection (4) when a work is broadcast. I beg to move.
These amendments are concerned to add a further category to the list in subsection (4) of the cases in which the author of an artistic work is to have the right conferred by Clause 69. If the noble Lord's concern is that the artist should have the right in respect of electronic publishing, then the amendment is unnecessary. He has the right whenever the work is published commercially. The Committee will note that Clause 159(4) defines commercial publication of an artistic work as including:
The amendment would, however, confer the right in cases where there was no element of publication or other public exploitation, such as in the case of a photocopy taken for purposes of private study. That is not the point of the paternity right. The author would gain nothing by it but the user of the work might be greatly inconvenienced. I hope that with my assurance that Clause 69(4) does include electronic publishing, the noble Lord will feel that that is satisfactory.making the work available to the public by means of an electronic retrieval system".
I should have thought that the example that the noble Lord gave of private use would be covered anyway under fair dealing and therefore would not be involved. Unless I have not followed the Minister completely, it did not seem to me that he dealt with the point. We are coming to somebody who has—as I thought I said when introducing this amendment—asserted his right to the photograph. That has to be asserted for example in Clause 70(3). "by instrument in writing". When the photographer has put his instrument in writing the assertion then
If there is no right—if the photograph is being transmitted by wire—to have the photographer's right transmitted, the photograph will land up on the desk of another newspaper without any right attaching to it. That is the problem that is meant to be dealt with here. If the name of the photographer, together with whatever is involved in the assertion, is printed on the back of the photograph, and a photocopy is taken and sent off by some means several thousand miles away and it is then printed, how is the author asserting his right? Why is his right not to be protected by the person who sends it off?"binds anyone to whose notice it is brought".
I should say to the noble Lord that once the author has effectively asserted his right that is it, especially if the assertion is an assignment, because Clause 72 makes that binding on everyone. I believe that in cases where it is necessary, where there is not a prior arrangement between the photographer and the person to whom he is sending the photograph by electronic transfer, that electronic transfer could also be used to carry an assertion of his right in that photograph.
I think that what the Minister has just said is quite true—that the assertion can be continued in the electronic transmission. Very often in the filing system the two then have a great risk of getting separated. All that this amendment seeks to do and all that we are seeking to do is to ensure that the information is retained on the copy. As I said at an earlier stage, with future magnetic means of taking photographs it may not even have been on the original other than in a magnetic form which identifies "photograph by Bloggs, copyright". This needs to be transmitted and it needs to be maintained throughout. That is all we are seeking to do. If the Minister would look at this and see whether there is some other use of words than these, which I agree may be conferring too many rights on reprography or reservations, I should be very happy to see the amendment withdrawn.
Yes, of course I shall consider what noble Lords have said and I shall indeed look very carefully at what they have said, but I am not convinced that there is a problem here. A publisher of photographs, let us say a newspaper, will have a considerable photographic library. Within that library there will be the photograph, the record of who took that photograph, the record of when that photograph was taken and of whom it is. There is no reason why along with the history of the photograph there should not be a record of whether a right has been asserted, just as the owner of the copyright should be recorded.
I do not think that we can take this very much further. There is a difficulty and I am very pleased that the Minister is prepared to take it away and think about it, as I am sure he will. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 178 not moved.]
I have to inform the Committee that if Amendment No. 178A is agreed to, I cannot call Amendment No. 179.
moved Amendment No. 178A:
Page 27, line 15, leave out from ("architecture") to end of line 16 and insert ("or engineering construction being a building or other structure has the right to be identified as the architect or the engineer—").
The noble Lord said: I certainly should not like to stand in the way of the proposals contained in Amendment No. 179. Those Members of the Committee present with long memories will recognise that this amendment is an echo of one that I moved several days ago. It has the intention of reviving the interest of the Minister and the Government in the very important proposition which I put forward then.
As this is a repetition of an earlier debate I intend to be extremely brief. I shall illustrate my point by citing only one example and that is an historical one. When we debated this matter earlier we talked about copyright. What we are not talking about is the moral right to be accredited with work done. Let it be said that I very strongly support that right. It is extremely important that in works of building construction not only the architect should be recognised and have the work attributed to him but also the other professionals who are involved in the work. To illustrate my point I shall draw attention to only one historic work, that being the Crystal Palace which was built a
century or more ago. Normally when people refer to the Crystal Palace they refer to Paxton's Crystal Palace. A very interesting book was published not long ago called Paxton's Palace. Paxton is recognised as the architect of the Crystal Palace although in fact he was not the architect at all. He was a gardener who had acquired some aptitude in designing glass houses, stone objects and such things. Paxton later rose to become a director of the Midland Railway, but he was never an architect although Crystal Palace is attributed to him.
It is not my intention to take away from Paxton the right of attribution for the Crystal Palace. He contributed several important characteristics to that great and important building. First, he contributed the conception of it. Secondly, he contributed the rudimentary design which was scribbled out on a blotting pad belonging to the Midland Railway during a directors' meeting, presumably when someone else was speaking.
Thirdly, Paxton had a capacity for Parliamentary lobbying, largely through Lord Brougham and Vaux. It was through that lobbying that he obtained the work at Crystal Palace. The fourth characteristic that Paxton brought to the Crystal Palace was a very important one. In the course of little more than a week he produced a feasibility study. He did not design the Crystal Palace. That was designed by Charles Fox, an engineer from Birmingham whose name now lives on in the consulting engineering firm of Freeman Fox. Paxton produced a feasibility design and in the course of' the next few weeks Charles Fox produced the actual design of the building. Paxton's part in the Crystal Palace was notable and should be recognised historically. However, Fox's part was equally notable. The Crystal Palace should always be, under moral right, attributed equally to Paxton and Fox.
That is an historical example and I dare say it is outside the scope of the Bill. However, exactly the same argument can be used in relation to the Sydney Opera House, the Pompidou Centre and other important buildings, some of which I have drawn to the attention of the Committee earlier. I think that the amendment is highly significant and important. I hope I was right in thinking, when we discussed this matter earlier, that the Minister was sympathetic. I should not wish to lose his sympathy by going on too long and I hope that he will rise to his feet and say that his sympathy has been enhanced by my arguments, followed by a period of reflection since our last discussion.
The noble Lord is quite right. This amendment is consequential on his earlier amendment, Amendment No. 11A. I am grateful to him for allowing me to say that I now have sympathy for his earlier amendment. I said that I should consider what he had said, and I now believe that in our reconsideration of the copyright status of engineering structures we should also look at the moral rights implications. I hope that with that assurance the noble Lord will withdraw his amendment and allow us to take a further look at it.
I rejoice in the Minister's words. I happily withdraw the amendment.
Amendment, by leave withdrawn.
moved Amendment No. 179:
Page 27, line 15, after ("building") insert ("not being a private house").
The noble Lord said: I beg to move this simple amendment. It raises a question of personal rights and of aesthetics. The question is whether the Bill should provide that the architect of a private house should have the right to have his name put on that house. Should owners of private houses have to have the architect's name on their houses; Clause 69(5) reads:
"The author of a work of architecture in the form of a building has the right to be identified as the architect—
(a) on the building as constructed".
My amendment would make an exception with regard to private houses so that the author would not have the right to have his name struck on a private house. I beg to move.
I am not very happy with the amendment. I do not wish to cross swords with the noble Lord, Lord Lloyd of Kilgerran. However, I should be happy to see people such as Gropius and many other architects being allowed to have their names on houses. I agree that many houses are built by architects who, one hopes, will feel so ashamed when they see the results of their work that they will not want to put their names on them. However, I think that is a great pity to leave private houses out because there could be quite exceptional pieces of architecture which are built as private houses. I hope that the noble Lord will think again.
I also hope that the noble Lord will think again. One of the greatest glories of this country is its private houses. I do not know why he does not want the architect's name on a great house, whereas he would love to have it on a factory or an office building. The noble Lord, Lord Howie, has been reminding us of the great days when architects were not the only people responsible for buildings; other artists who were not professioal architects built buildings. What a pity we cannot return to those days! However, that is rather off the point. I am against the amendment.
I do not see why private housing should be left out. I should be interested and delighted to know who the architect of my own house was.
I do not live in a grand house, which will surprise no one. However, I am opposed to the amendment. My house was designed by an architect. I like some of it; I do not like other bits of it. I wanted to know who the malefactor was, though I am sure he was a good man. It was difficult to find out; I had to go through the records. I think it would be rather nice if there was a little plaque or brick beside the front door with the name of the architect so that I should know who did the house. He was not Lutyens or anybody important. However, he was not a bad fellow in his own way. I should like to give him credit by nodding to him every time I go through the door.
Perhaps the noble Lord, Lord Lloyd, has a very practical point, particularly when we look at paragraph (b). If we have a film which deals with housing or a general film of any sort which covers a large area of country and includes many houses, the credits will be longer than the film.
It seems to me that the difficulty about the amendment is that there are a number of different sorts of private houses. There is Number 2, Laburnum Grove, and there is Blenheim Palace. A line ought to be drawn somewhere between those. The amendment goes altogether too far.
Notwithstanding where the noble and learned Lord would like to draw his line between Laburnum Grove and Blenheim Palace—perhaps somewhere near Woodstock—we are concerned with the architect's right to be identified with his work. We recognise that different considerations apply when considering architects than when considering other authors. For example, we recognise that many buildings, particularly private dwellings, may be constructed to the same design, and so we have proposed that the right only arises in respect of the first to be constructed.We are reluctant to go further and remove the right altogether in respect of private houses. First, what is a private house? Are we only talking about buildings designed for private dwellings or does the architect's right expire if a building is converted from other use? More important, there are private houses for which the architect can reasonably expect some recognition. Many of our stately homes are fine works of architecture and it seems inequitable to deprive the architect of the right to be identified because he has designed a palace rather than a factory. If the person for whom the building is to be constructed feels strongly about the matter he can of course require the architect to waive his right. This seems the more equitable safeguard, rather than depriving the architect of his right from the beginning. Perhaps I may say to my noble friend Lord Swinfen that his point is met by the incidental inclusion in Clause 71(3)(b).
I am grateful to noble Lords who have participated in this short debate. I prefaced my remarks in introducing the amendment by saying that it was a question of aesthetics and possibly of personal rights. I therefore anticipated that there would be a considerable difference of views. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 179A:
Page 27, line 39, leave out from ("prominent") to end of line 40.
The noble Lord said: In moving the amendment I should like to speak also to Amendment No. 182A. The implication in Clause 69(7) that any form of identification must be referred first to the author for approval threatens many difficulties in practice. To avoid those difficulties it may be more satisfactory if the author were to be given the opportunity to dictate the desired form of identification at the time when the right to be identified is asserted. Such an agreement would be in line with the provisions on waivers in Clause 77(2) and (3), where the possibility of a waiver being conditional is envisaged. I beg to move.
I wish to support my noble friend's amendment. It seems absolutely sensible and rather simple. I hope that my noble friend the Minister can accept it.
These amendments deal with the question of how an author chooses to be identified when he has asserted his paternity right. It may be, for example, that he wants to be known by his pseudonym. At the moment this is provided for in general terms in Clause 69. The suggestion made by my noble friend Lord Cullen is a useful one. It would mean that the author, when asserting his paternity right, could specify the exact form that his identification should take. In this way the author or director could ensure that those whose notice was brought to the assertion would also be aware of the means of identification. This is something that we can accept in principle, but we should like to look a little more closely at the wording.In the light of this assurance, I hope that my noble friend will withdraw his amendment.
I willingly withdraw the amendment. I am just recovering from a sense of shock.
Amendment, by leave, withdrawn.
moved Amendment No. 180:
Page 27, line 40, at end insert—
("( )References in this section to a work include references to a substantial part of a work.").
The noble Lord said: Can the noble Lord tell us the occasions on which the author has the right to be identified? I noticed in subsection (2) that the author has the right to be identified whenever the work is published commercially which I thought should apply whenever a substantial part of a work is published and not necessarily when all of it is published.
When I looked at paragraph (b) I saw:
"copies of a film or sound recording including the work are issued to the public".
Surely that should also apply to the work or any part of it. As I continued looking through the other subsections I found on each occasion that those words ought to be inserted. I felt it would be simpler to have a new subsection at the end saying:
"References in this section to a work include references to a substantial part of a work".
That is what my amendment intends. I beg to move.
I intercede to support my noble friend. If we look at subsection (7)(b) we see that it refers to buildings. I draw the attention of the Committee to such a construction as Hampton Court Palace, which is the work of several hands, some of which carried out substantial parts of the work but each of which should be recognised rather than merely one, in a modern version of the same thing. I think my noble friend's amendment should be very carefully considered and perhaps accepted.
This amendment seeks to ensure that the paternity right applies to parts of works as well as complete works. This has in fact already been provided for in the first subsection of Clause 79, which states that the right applies to the whole or any substantial part of a work. The amendment is therefore unnecessary and I ask the noble Lord to withdraw it.
I had not noticed that subsection, and I have just turned to it. I am not perfectly certain that I am happy about that, but I feel sure that I shall be when I have had time to read it carefully. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
moved Amendment No. 181:
Page 27. line 41, after second ("section") insert ("70 (requirement that right be asserted) and section").
The noble Earl said: I suggest that the moral right to be identified, if it is to apply to cases in which the right does not apply—Section 71—must also apply to the requirement that the right be asserted. At this stage I am not going into the question of assertion but merely asking the Government to look again at the anomaly between this subsection and Section 70. I beg to move.
An unsuccessful attempt was made to get the assertion taken out of the first part of Clause 69. There is no need to repeat what was said. We must have asserted the right before any of these came along. Therefore, if I am following the noble Earl correctly, this is an unnecessary amendment.
I agree. This amendment seeks to ensure that the paternity right will only have effect if it has been asserted in writing. This has already been provided for in the first subsection of Clause 69, which states that the right is not infringed unless it has been asserted in accordance with Clause 70. The amendment is therefore unnecessary, and I ask my noble friend to withdraw it.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 69 agreed to.
Clause 70 [ Requirement that right he asserted]:
moved Amendment No. 182:
Page 28, line I, after ("copyright") insert ("or exclusive licence").
The noble Earl said: This clause grapples rather laboriously with the concept of assertion. This concept is new in this Bill and was not treated in the Acts of 1911 or 1956. I support the concept and the aims set out in the Bill. I wish to point out to the Government that where an exclusive licence exists and is assigned, then the right to be identified should also be asserted. I beg to move.
The assertion of the right to be identified as author can be made on the document which provides an assignment of copyright. This then binds the assignee and anyone claiming through him. This amendment seeks to make the same provision through an exclusive licence. I am afraid that I consider this amendment to be mistaken. An assignment passes copyright out of the hands of the author and he is thereafter dependent upon his moral right to protect his remaining non-economic interests in the work. To be able to rely on his right to be identified he must assert that right, and the most effective way of doing that will be in the assignment itself. This then binds the assignee and every other person who thereafter becomes owner of the copyright.A licence is entirely different. An author granting a copyright licence will still be owner of the copyright and he will rarely need to rely on his moral rights. He will, as at present, be able to insert appropriate terms in the licence, and breach of those terms could well be breach of contract, infringement of copyright or both. In the rare event that he considers it necessary to rely on his moral rights, he will be able to include an assertion of his right to be identified in the licence, as my noble friend Lord Stockton envisages. That can be achieved already under subsection (3) of the clause. There is no need to introduce the point into subsection (2) which, as I have just said, deals with the different circumstances of assignment.
I thank the noble Lord for his reassurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[ Amendment No. 182A not moved.]
On Question, Whether Clause 70 shall stand part of the Bill?
I return to this question of assertion. This clause tells us the methods of asserting but it does not tell us what assertion is. Subsection (1) states:
"Him" is the person who does not name the author. One then has a situation that the right can be asserted on assignment. I should have thought that at least some lawyers would like to know what has to go into the document of assignation to be the assertion. What has to be said? If I heard the Minister correctly when we were dealing with the amendment to Clause 69(1), he said that the name of the author on a book was not necessarily an assertion of moral right. If that is not an assertion, what is? How do you get across to the public, or to anybody, that you are asserting something. I take an example of something which might conceivably happen to me—which is unlikely so far in the copyright provisions of this Bill. If I write an opinion on a matter of law and it is provided to a firm of solicitors, which passes it to its clients, who in turn pass it to somebody else, how do I assert any moral right I may have as the author? Such circumstances must pertain fairly frequently in lectures and things of that nature. What is it we are talking about in saying "assertion"? Subsection (3) states:"a person does not infringe the right conferred by section 69…by doing any of the acts mentioned…unless the right has been asserted in accordance with the following provisions so as to bind him".
How does the author bring this to the notice of somebody? Are we to have on each page of each book a notice saying that the author of the page, if it is a composite work, has asserted his moral right, so that anybody reading it has to resort to this notice? If not, what exactly is the intention? It is far from clear, at least to me, what this assertion comprises. Unless there is some definition of how one sets about asserting, what the Government mean by it and what the lawyers and others are to understand by this strange act of assertion (which of course nobody in Britain has ever had to do before), we are left in a state of total confusion."The right may also be asserted by instrument in writing signed by the author or director; and in this case the assertion binds anyone to whose notice it is brought".
I echo the confusion of the noble Lord. I find it very difficult, as I said on Second Reading, to understand how this assertion works in relation to works of art. If one asserts one's right to the person one passes a work to, is that assertion to be passed on by the transferor of the work? If one does it by means of an instrument, is the instrument to go with the work of art for ever, and a day, and can one presume that it has been so passed on? As regards the concept in subsection (4) of asserting generally one's right in relation to a work of art, I do not at the moment understand what a general assertion would be in relation to a work of art rather than a specific assertion. How is one expected to assert something generally? Can one assert it generally and then sit back for ever, and whoever comes into possession of that work will be deemed to have had that right asserted to them?The Minister made some very helpful comments when we discussed this matter previously. I put forward these questions in the friendliest possible way. I hope he will take them into account when he considers "assertion" in relation to works of art.
I should like to support the amendment. It seems to me that assertion is only a second form of copyright—
Is the noble Lord aware that we are on a clause stand part debate at the moment?
I do not see any problem at all with assertion in the case of a book, for example, because I imagine it is only necessary that the contract with the publisher states that the author asserts his right to be identified as the author on all copies of the book. However, there seems to be a problem regarding pictures, particularly in view of what the noble Lord, Lord Hutchinson, said about the signature on a picture not being at all reliable. The fact that the painting has been signed is perhaps not good enough to identify the painter. I do not know how the author of a painting could be satisfactorily identified unless there is a little plaque under each picture stating who the author is. If you can take a signature out of a drawing of some sort and substitute another one, or leave it without a signature, a fortiori, you can take a plaque off and put it on another painting. How will a painting be identified through the centuries? If only it had been done in the past there would be a lot less trouble in the art galleries. But it has not been done, and how it is to be done in the future I cannot imagine.
As my noble friend pointed out, Clause 70 seems to add very largely to the confusion. There is no doubt that this clause, even with the Government's intention behind it, is certainly far from clear. It still does not give any practical information on assertion. Subsection (5) states:
It seems very difficult to be penalised for a delay in doing something when you have not been told exactly how you should do it and in what way. Many questions arise on this. A writer is under a double handicap, first, over assertion and then over the need to use a waiver in certain circumstances. The clause is far from clear in its present form, whatever the Government's intentions are, and should not remain in the Bill."In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right".
The noble Lord, Lord Morton, asked what an "assertion" is. I have already discussed that with him. I repeat that an assertion is a statement by the author that he wishes to be named on copies of the work and he can say so in as many words in his assignment, or, as the noble Lord said, in his assignation, which I think I am right in saying is the Scottish equivalent. Alternatively, he can say so in as many words in his notice under subsection (3). The noble Lord's suggestion about a notice on each page of a book is clearly not required with this clause.I turn to the point raised by the noble Lord, Lord Hutchinson of Lullington. I have already said to him that I will consider the point that he raised earlier about artists. I can say little more now. However, I make it plain that where there is an assignment of copyright, as opposed merely to sale of a picture, an assertion in the assignment is good for all time. If the assignee or his successors in title lose it, that is their problem, not the author's. Turning to the point made by the noble Lord, Lord Kilbracken, he used the phrase "through the centuries". I merely remind the Committee that moral rights last only for the term of copyright, which is usually life plus 50 years. I turn to the point made—
Perhaps the Minister will give way. In contrasting subsections (2) and (3), he said that under subsection (2) an assignation or the assignment lasts for ever for anybody. There is a distinction in subsection (3), where the assertion binds anyone to whose notice it is brought. Does he say that the assertion covered by the assignment—or, as I would have it, assignation in Scotland—binds someone whether they know about it or not, whereas in subsection (3) it does not bind anyone unless it is brought to their notice?
As I understand it, the assertion binds the assignee or his successors absolutely. If the successors lose it, that is their problem. The author or painter will have to bring the original assertion to the notice of the new owner of the copyright. On that basis the painter or author has done what he has to do to assert his moral right in this instance.The noble Baroness, Lady Birk, brings to our notice the fact that the clause provides that in an action for infringement the court should take into account any delay in asserting the paternity right. It may be unjust to grant an injunction or substantial damages if there is a late assertion after the right owner has spent the money on exploitation. To revert to the point of the noble Lord, Lord Morton, about assertion, I think that this is a difficult area. I should like to get it quite clear for him. I shall write to him on the subject and have a copy placed in the Library for the benefit of all noble Lords.
Would the Minister kindly state in the letter not how an assertion is communicated but what the assertion has to be? Perhaps he will include in the letter illustrations of how it is done in a musical sense, in a literary work and in an artisitic work.
I wonder whether there is any sense in which the assignment is similar to the exchange of a Bible between Robert Burns and Highland Mary over the burn at Filford near Ayr? I observe that the noble and learned Lord, Lord Cameron, is present. Perhaps he can help on the matter.
My noble and learned friend says that he was not there! I shall indeed include in the letter a form of words that I believe would be an assertion of my paternity right in the letter.
:I hope that the noble Lord will bear in mind that the discussion on this clause is on the basis that there remains a duty to assert. In considering Clause 69 I know that he will bear in mind the question whether there should be a duty to assert at all in the case of artists in relation to painting, sculpture and so on. The discussion has taken place on the basis that that duty will remain. I hope that as a result of the Minister's reconsideration of Clause 69 such artists will be exempted from assertion.
I wish to refer to the Minister's comment on my remark "down the centuries". He seemed to indicate that the right to be identified as the author of a copyright work extended only for the period during which the copyright was valid; in other words, for the lifetime of the author. This may be tucked away in another part of the Bill, as these things often are, but I see nothing in Clause 69 to the effect that his right to be identified does not go on for ever. The clause says,
It does not say when the copyright ends. If I am wrong in this and it is valid only while the copyright continues, I should be grateful to know where it is provided for."The author of a copyright … work … has the right to be identified".
It is in Clause 76.
Clause 70 agreed to.
Clause 71 [ Cases in which right does not apply]:
I have to inform the Committee that if Amendment No. 183 is agreed to I cannot call Amendments Nos. 184, 184A, 185 or 185A.
moved Amendment No. 183:
Page 28, line 15, leave out subsection (2)
The noble Baroness said: Clause 71(2) denies the right to be identified as author to computer programs and typefaces. Is this not a breach of the Berne Convention, if moral rights are to cover all literary works. Unless it can be argued that for the purposes of Berne, unlike the United Kingdom copyright law, computer programs are not literary works and typefaces are not artistic works, it is not at all clear that we are right to agree to this part of the Bill. In other countries this provision is gradually being made for literary and artistic works. As we shall not have another measure of this kind for many years, I think that we should take note of what is happening now and will continue to happen in the realms of modern technology.
The amendment seeks to ensure that the authors of computer programs and typefaces are entitled to the right to be identified as author. The list of exceptions to the paternity right given in Clause 71 has been compiled for a number of reasons, one of them being practicality. We feel that giving the authors of computer programs and typefaces the paternity right would cause numerous practical problems and would lead to more problems than benefits. Although literary works, programs are different in many ways from books and other material regarded as literary works. It would not, for example, be appropriate for the authors of the computer programs running teletext services to be identified each time someone wants the latest news or cricket score. The same sort of argument applies to typefaces in relation to more orthodox artistic works. It is worth observing that even in France, where legal recognition of moral rights is perhaps most fully developed, there are no such rights in computer programs.I believe that the Bill as drafted provides for us to fulfil our obligations under the Berne Convention.
Having had considerable experience in the parliamentary information technology field and as a member of the Select Committee on Science and Technology, I understand that this would lead to an impossible situation.As the Minister has indicated, computer programs necessarily contain many hundreds of names in the codes and take up valuable computer storage space. The copyright owners will not be able to maintain the programs by means of modernisation and improvements without obtaining the consent of all the producers of programs. It seems to me that this amendment would make similar modification to typefaces an impossible task.
The noble Lord, Lord Lloyd, has almost convinced me, but I shall read in Hansard what he has said. I was also asking for information. I was informed that provision is being made in other countries. I was also asking whether the provision contravened the Berne Convention.