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The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 27 is agreed to, I cannot call Amendment No. 28.

Baroness Blatch moved Amendment No. 27:


Page 4, line 43, leave out from ("section") to end of line 10 on page 5 and insert ("during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.").

On Question, amendment agreed to.

[Amendment No. 28 not moved.]

Clause 5, as amended, agreed to.

Clause 6 [Voluntary disclosure by accused]:

[Amendment No. 29 not moved.]

Baroness Blatch moved Amendment No. 30:


Page 5, line 18, leave out from ("it") to end of line 26 and insert ("during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.").

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

The Earl of Courtown: My Lords, I beg to move that the House do now resume. In moving this Motion,

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I suggest that the Committee stage begin again not before 8.5 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Consolidated Fund Bill

7.2 p.m.

Brought from the Commons, endorsed with the Certificate of the Speaker that the Bill is a money Bill.

The Earl of Courtown: My Lords, I beg to move that this Bill be now read a first time.

Moved, That the Bill be now read a first time.--(The Earl of Courtown.)

Lord Boyd-Carpenter: My Lords, I hope that my noble friend the Minister realises the farce in which she is taking part. The Consolidated Fund Bill is an immensely important Bill which we are inhibited from debating as a result of a very unwise decision by the Procedure Committee. When the Bill's First Reading is moved, it is just as well that the House should bear in mind that it is deprived of the very proper duty that it would otherwise have of analysing a Bill of such great importance.

On Question, Bill read a first time, and to be printed.

Duration of Copyright and Rights in Performances Regulations 1995

7.3 p.m.

Lord Fraser of Carmyllie rose to move, That the draft regulations laid before the House on 20th November be approved [2nd Report from the Joint Committee].

The noble and learned Lord said: My Lords, these regulations amend the Copyright, Designs and Patents Act 1988 in order to implement all of the main provisions of a Council directive (93/98/EEC) harmonising the term of protection of copyright and related rights in the European Union. This became due for implementation on 1st July this year, and we very much regret that the complexities of the regulations have meant that we have been unable to complete their preparation in time to meet that date. Indeed, work still remains on legislation to implement Article 4 of the directive, which requires introduction of a new form of protection for unpublished works in which copyright has expired. That article is not, therefore, covered by the present regulations. We intend, however, to deal with that remaining aspect as soon as possible.

The 1988 Act already complies with one of the main requirements of the directive--a 50-year period of protection for copyright in sound recordings and broadcasts and for the rights of performing artists. In bringing the duration of those rights to the same level in the rest of the EU as in the UK, the directive should

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be of significant benefit, particularly to the UK sound recording industry. The area is of considerable economic importance to the UK, and where up to now terms of protection have been much shorter in several other member states, including Germany.

The directive does, however, mean that the 1988 Act has to be amended to increase the basic term of copyright in literary, dramatic, musical and artistic works. This will rise from the present life of the author and 50 years after death, to life plus 70 years. Although this term previously applied only in one member state, Germany, two others also had terms longer than the UK--Spain with life plus 60, and France with life plus 70 in the case of musical works. Harmonisation at life plus 50 would therefore have been difficult since it would have meant reductions in protection in three member states. Moreover, the directive was subject to qualified majority voting, and it became clear that most other member states were willing to accept harmonisation at life plus 70. In those circumstances, therefore, the UK agreed, reluctantly, to accept the increased term. It follows, however, that there will also be increases in most other member states, and UK authors, composers and artists should benefit from this at least as much as those from other EU countries.

The directive also means that the duration of copyright in films, at present 50 years from making or release, is changed by the regulations and is put on a similar footing to the term for literary and like works. Copyright in films will now last for 70 years from the death of the last to die of the principal director, the authors of the screenplay and dialogue, and the composer of any music specifically for the film. The underlying reason for the change in approach is that several other member states already protect films on a "life plus" basis rather than for a fixed period.

I should also explain that the directive requires the increased copyright terms it sets to apply not only to future works but also to existing ones. This means that the copyright of works currently in protection in the UK will be extended. Revival of copyright will also occur in the case of works which, although in the public domain in the UK, are still protected elsewhere in the EU. However, the terms set by the directive essentially apply only to works from the EU. Those from outside the EU will receive the term granted in the country of origin, which in most cases will be less than the EU term.

A number of the regulations concern transitional provisions in relation to extended and revived copyrights. The Government are well aware of the difficulties which revival could cause. But without this approach there would be no effective harmonisation for a considerable period, and UK sound recordings and performances would suffer from remaining out of protection in several other member states.

Moreover, we have tried to do as much as possible to ensure that there are adequate safeguards to protect users who would otherwise be adversely affected by revival of copyright. Clearly, it would be wrong if anything done before the regulations come into force and copyrights revive were retrospectively to constitute an

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infringement of the revived rights, and this will not be the case. But, necessarily, the safeguards go much further than this; for example, where arrangements for exploitation of a work in which copyright will revive have been made prior to 1st January 1995, nothing done in pursuance of those arrangements after the regulations come into force will infringe the revived rights. That means, for example, that if a publisher has entered into commitments to produce an edition of an affected work before the date I have indicated, he will be able to fulfil his commitments without incurring any liability to copyright owners.

We have also had to establish who is to own extended or revived rights. That is not dealt with by the directive but is a matter which has to be resolved since otherwise it would be unclear who is entitled to authorise particular acts or benefit from them, with the result that future use of works could be inhibited. On that aspect we have tried to take an approach which is both fair and produces the greatest legal certainty. In essence, we have concluded that those objectives are best met by providing that the current owner of copyright will own the rights extended by the regulations and that the last owner of the original copyright will own revived rights.

The House will realise from this introduction that the directive raises difficult questions of balance between competing interests. I am confident, however, that the solutions we have arrived at are fair and workable.

Finally, there is one matter upon which I should comment. It is the date upon which the regulations are due to come into force; namely, 1st January 1996. I am aware that there is concern among interested parties as to whether that means that copyrights due to expire on 31st December this year are extended as opposed to being revived. I should like to take the opportunity to assure your Lordships that the effect of the regulations is that those copyrights will continue in force and will be extended. I beg to move.

Moved, That the draft regulations laid before the House on 20th November be approved [2nd Report from the Joint Committee].--(Lord Fraser of Carmyllie.)

7.12 p.m.

Lord Brain: My Lords, in giving the statutory instrument a guarded welcome, I must declare a number of interests. I am treasurer of the British Copyright Council, and chairman of the British Photographers Liaison Committee, both of which bodies have consulted the intellectual property section of the DTI and actively made representations to the European Commission. It is possible also that my family may benefit in due course from the extension of copyright provided by the statutory instrument. So I declare those interests.

I congratulate the Minister on his explanation of this SI, which is longer than many Bills, and I accept fully the point that he has just made, that copyright which people feel expires at the last minute of this year is, because of the way the SI is worded, in copyright at that moment, immediately before the SI comes into force. That is acceptable. It is genuinely extended copyright.

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The Minister has admitted that there are parts of the appropriate directive which have yet to be dealt with. I may come to that in a minute. He has said also, with regret--I accept that--that it should have been brought into force by 1st July. I would just draw attention to the fact that members of the British Copyright Council saw the Minister on 2nd November 1994 to discuss implementation of the directive. I have a slight feeling that, rather than dealing with an SI, an elephant was being conceived in those days, and that the calf has been born in a bit of a rush. When it all arrived, we were given less than three weeks to deal with all the final complications of the last draft. Even then, when it was first placed before the House it took me two days to obtain a copy of the instrument. It was considered by a joint committee. I have been awaiting the report of that joint committee. I managed to pick one up this morning in the Printed Paper Office. We have already had comments about delays of that sort in the House today. I would just add that to the list of problems.

I shall talk about the problems of photographers in particular. Those who have heard what the Minister said will realise that the photographs which were taken in 1945, which was a great year for this country, would have fallen out of copyright on 31st December. That copyright is now extended, but those photographs were taken under the Copyright Act 1911, which was then extended by the Copyright Act 1956, which was then further extended by the Copyright, Designs and Patents Act 1988, Schedule 1, paragraph 11(2)(a).

So the person who commissioned the photograph owns the copyright on 31st December this year, and therefore, quite correctly, it goes on from 1st January as his property, if he still exists. I shall come to whether or not his existence is important in a moment. Looking at the extension for things like films, because the people who were granted the extension of copyright were receiving copyright extended in a somewhat peculiar way and the directive granted them and others more protection, it is clear in the SI when the extended copyright expires.

I have looked through with great care, and because in most cases the extension of copyright of artistic works is now the author's death plus 70 years, I have been unable to find the date of expiry of extended photographic copyright. I may not have used a sufficiently good magnifying glass. I am happy to be told by the Minister when he replies that I have made a mistake. Regulation 18 of the SI, which deals with the extension of the copyright, is fine when one is considering the extension of copyright of an author or the extension of copyright in a film, but, because copyright was held by the commissioner, it does not apply so easily to photography, especially if the copyright was held by a limited company which has been taken over innumerable times, and such things.

Regulation 19, however, which deals with revived copyright, conveniently deals with those points. It is a great pity that Regulation 18 does not contain a somewhat similar provision for photographs. If I have made a valid point on either of those two matters, I hope that, when the Minister replies, because he has already said that there are matters outstanding on the directive

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to be dealt with later, he may find a way of covering in a future SI the point I have raised. I leave that, and welcome what he says.

I have one other query on the SI. Under what section of the directive do the Government have power to implement the reasonable royalty provision under Regulation 24(1)? I ask that question especially, because I have received an indication that that type of royalty may be in contravention of the Berne Convention.

Finally, will the Government give an indication of the date on which the next statutory instrument relating to duration and the statutory instruments on rental and lending and the cable and satellite directives are likely to be laid before the House and, it is to be hoped, given an unhurried implementation, bearing in mind that the latter two instruments are some 18 months late?

7.20 p.m.

The Earl of Kinnoull: My Lords, unlike the noble Lord, Lord Brain, I have nothing to declare in respect of copyright law. Indeed, I have been struggling to understand the few words of the regulations. I wish first to congratulate my noble and learned friend on introducing the regulations in his usual skilful way and on making a complicated matter look simple.

In general, one applauds the harmonisation of copyright as set out in the 1993 directive and the benefits that will flow to British authors and publishers from 1st January 1996. I expect that all noble Lords have spoken on behalf of one particular factor but my intervention follows a discussion that I had with members of the Composers' Estates Group. The group represents approximately 15 estates of some of the most famous British composers; for example, Elgar, Delius, Holst, Britten, Walton and Vaughan Williams, to name just a few.

Many of the estates were formed as charitable trusts on the death of the composer. Today the trust income provides a welcome benefit to future generations of struggling composers, the training of youth orchestras and even the funding of the Aldbury Theatre in Suffolk. One would think that such heirs of great composers would significantly benefit, together with authors and publishers. That was the obvious intention of the 1993 directive which stated:


    "Their protection ensures the maintenance and development of creativity in the interests of authors/composers, cultural institutions, consumers and society as a whole".

One could find nothing more positive than that. Yet, despite these fine objectives, the heirs and estates of composers are unlikely, as I understand it, to benefit very much from harmonisation due to the drafting of the regulations before us.

The main concern of the group is its future interests in the ownership of the extended and revived copyrights. In the case of the extended copyright, its ownership interests under the regulations appears to be limited to the terms of the original agreement. That may have been written more than 50 years ago and have little bearing on today's conditions. I suggest that such a restriction becomes unworkable.

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It is interesting to note that musical rights fall broadly into three categories; the performing rights, the mechanical rights and the publishing rights. Surely a fairer formula of benefit could be devised. A similar unfairness appears to arise under the regulations as regards revived copyright. Here the benefit goes to the immediate owner before the copyright expired. That may seem reasonable for authors who traditionally hang on to their copyright ownership. However, as regards composers it is known that traditionally the publisher owns their copyright.

Thus, because of market conditions, the composers' heirs and estates are unlikely ever to be able to benefit from the windfall designed for them under the directive. Why cannot some equitable remuneration be introduced in the regulations in view of those well-known traditional practices?

I turn to the exploitation of revived works. Here the regulations seem to depart somewhat from the directive. First, the dates differ and the directive is more simple to understand. Secondly, when judging whether a person is due to pay or not pay a royalty for revived works the directive uses the expression "in good faith" but the regulations use the expression "in pursuance of arrangements". My legal friends tell me that the phrase "in pursuance of arrangements" is baffling and has no precise legal definition. To substitute "arrangement" for "agreement" would be understood. I hope that my noble friend will give an assurance that that will not lead to wasteful litigation. Furthermore, it appears that there is no mechanism for the exploiter to have to declare his arrangements, which is a minus factor for the states attempting to protect their interests.

My final question relates to compulsory licences, which I understand first arose in copyright legislation back in 1911. I am advised that in 1988 the Government abolished the compulsory licences as being incompatible with the Berne Convention and likely to cause problems with the export of records to member states. Why are the Government introducing such a provision and re-opening these old worries?

I return to where I began. The 1993 directive is to be welcomed for the intellectual property of our country and for the windfall benefits that will accrue. However, I am unhappy that part of that intellectual property--our famous composers and their heirs--should be unfairly handicapped by the regulations. After all, without composers the music world would be a sterile place.

I hope that tonight my noble and learned friend can offer some assurances and clarifications about how a group such as the Composers' Estates Group, which does such immense good, will not be penalised by any inept drafting of the regulations and that if their case is proved some modifications can be made in future regulations.

7.26 p.m.

Lord Monson: My Lords, will the noble and learned Lord say whether, as has been widely reported, Germany in effect bullied other EU countries, which initially were extremely reluctant, into agreeing to extend the period of literary copyright by 20 years?

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Secondly, will he give an estimate of how much this regrettable step, as he himself explicitly agreed, will increase the price of low-priced reprints of popular classics, which have been such a welcome feature of our publishing scene during the past five years or so?

7.27 p.m.

Baroness Hamwee: My Lords, I too must start by declaring an interest. I am a solicitor and a partner in a firm of solicitors many of whose clients are authors and owners of copyright material, performing artists and licensees of such material.

My first question is a general one relating to the form in which the regulations are introduced. I understand that the directive could have been implemented by primary legislation rather than by statutory instrument. Given the anxieties that have been expressed tonight, which reflect discussions and debates on some difficult matters, will the Minister explain to the House why the Government decided to go ahead with regulations in this form, because the statutory instrument is not capable of amendment? Had we been dealing with a Bill, it would have been possible to discuss the anxieties in the shape of amendments and possibly to have implemented some amendments.

Noble Lords who have already spoken have covered the major points and I apologise for repeating some of them. First, perhaps I may ask the Minister about matters in the directive which have not been implemented. He has already mentioned Article 4, so I shall not ask about that. But I understand that Article 2(1) provides for authorship of cinematographic or audio-visual work, the author to be the principal director of that work. The regulations do not amend the 1988 Act to provide for authorship of those works.

Secondly, Article 3(3) requires that the producer of the first affixation of a film shall enjoy rights for a period of 50 years. Again, the regulations do not deal with that. In parenthesis, I apologise to the Minister for not giving him notice of these questions. I was not aware of the questions until shortly before the debate.

The issue of what in effect will happen in practice in the extra 20 years has been dealt with by the noble Earl, Lord Kinnoull. He referred to old-fashioned forms of publishing agreements. Over a number of years of practice, I have seen agreements which, to modern eyes, seem extraordinarily outdated and unfair to the composers and authors. Royalty levels may be very low or, indeed, there may be no royalties at all. The agreements may not be so outrageous that they may be challenged as being unenforceable or, indeed, they may be open to challenge but there is neither the wherewithal nor the will to do so. But certainly, they are often quite unsatisfactory. They inevitably fail to deal with technological progress. The possibility of exploitation using modern technology was not even a twinkle in anybody's eye when many of the agreements were written. I share the noble Earl's anxieties about the continuation of such terms for another 20 years.

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The noble Earl has also talked about anxieties as to the extent of what is permitted when revived works are exploited. In referring to arrangements undertaken in good faith, the Minister used the word "commitments". Perhaps he will expand a little on that.

In the real world, a publisher may have decided in December of last year to bring out an edition of a work which was then in the public domain. Being sensible, he would have decided to print copies to meet demand. After all, publishers do not wish to hold excessive stocks. The copyright then revives. Will the publisher continue to print and market that edition indefinitely on the basis that it was an arrangement made within the regulations? I should be grateful to the Minister if he could help your Lordships and those in the industry who are concerned as to where the lines are to be drawn.

The question of compulsory licences has also been raised. I share the concerns that have been expressed. The directive dealt with exclusive rights and protection of exclusive rights. Having the benefit of a licence which one is compelled to grant is not the same as being in control. The blanket licences are not, to my mind, the same as the control and protection which was anticipated by the directive.

The Berne Convention has been mentioned by the noble Lord, Lord Brain. I have been advised that there may be also a question of ultra vires in connection with the European Communities Act. Section 2(2) of the European Communities Act 1972 empowers the Minister to make certain provisions but there is no obligation on the United Kingdom under the directive to establish a right to a reasonable royalty. I am advised that the right may be contrary to the obligation which the directive imposes; in other words the restoration of the exclusive right. Therefore, there is also a concern in that connection in relation to the Berne Convention.

Also in connection with compulsory licences, it is not only the income which is material--the licence charge--but other conditions which the licensor may wish to impose. The copyright tribunal has powers to fix the reasonable licence fee if the parties cannot reach agreement but that is the extent of the tribunal's powers. In the minds of the parties there are no doubt other details as to the extent of use which are important but which are not catered for if the parties cannot reach agreement.

7.36 p.m.

Lord Peston: My Lords, I join other noble Lords in thanking the Minister for introducing the regulations. When I was preparing my notes, I did not realise, although it is now clear to me, that as I am the author of several books I must declare an interest. I can only add that I hear from my publishers once a year when they say, "Your total royalties earned this year are less

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than the minimum we pay and we accumulate them for subsequent years." That is accumulating very slowly. Therefore, I do not have much of an interest to declare.


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