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Lord Inglewood moved Amendment No. 205:


Page 69, line 2, at end insert--
("( ) References in subsection (2) to the publication of any matter are references to the publication of that matter without its being accompanied by any observations made by a person other than the BSC and relating to the complaint.").

On Question, amendment agreed to.

[Amendment No. 206 not moved.]

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Lord Inglewood moved in substitution for Amendment No. 206 a manuscript amendment:


Page 69, line 12, leave out ("at such intervals") and insert ("monthly or at such other intervals as they think fit").

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 207:


Page 69, line 34, leave out ("absolute") and insert ("qualified").

The noble Viscount said: My Lords, due to the lateness of the hour at Committee stage I did not move the amendment but the Minister and I exchanged correspondence on it. However late the hour, I feel that I must move it now.

This is an issue that has been highlighted by a recent court case which, rather than explaining the issue, confused it. I am concerned that under the Bill the BSC would have absolute privilege which would enable it to make possibly libellous statements without risk of being sued. The provision of absolute privilege to the BSC's report would give that body a greater level of protection than that applied to equivalent bodies under the law of defamation.

Traditionally, absolute privilege attaches to Parliament and the courts, those bodies to whom it is afforded by statute, and those bodies which exercise the judicial power of the state. Absolute privilege attaches to fair, accurate and contemporaneous reports of the courts, provided they sit in public, but qualified privilege only attaches to reports of other absolutely privileged bodies. This position is reflected in the Defamation Bill.

The BSC will exercise a complaints function, usually having held a hearing, in private, and not a judicial or state function. Those bodies to which Parliament has afforded absolute privilege usually exercise one or other of those functions; for example, the Monopolies and Mergers Commission. If the BSC were to receive absolute privilege as a complaints body which holds hearings and receives evidence it would follow (on the analogy with the courts of justice) that statements of the parties and witnesses would also enjoy absolute privilege, which is surely unintended.

I fully accept that the new body must have teeth and must reasonably protect its members. This is an important issue on which I should be grateful for clarification from my noble friend. I beg to move.

Lord Donoughue: My Lords, perhaps I may express my support for the noble Viscount's amendment. I endorse the points that he made. I should also say that I object to absolute privilege in the Houses of Parliament; indeed, I should like that to be abolished too because it is abused. Should there ever be any scandals in another place or on Select Committees, I believe that the privilege would be abused. Absolute privilege is a very dangerous licence. It is possible only in a world where there are gentlemen, and we now know that the world is very short of them. I wholly support the views put forward by the noble Viscount. I believe that qualified privilege is quite enough.

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Lord Thomson of Monifieth: My Lords, both the Government and the Minister ought to be aware that these Benches also support the amendments. We believe that the case was very clearly put by the noble Viscount, Lord Astor.

Lord Inglewood: My Lords, Parliament has entrusted members of the commission with a particularly difficult task in the case of fairness complaints. It was our intention to protect those members in the exercise of their functions. As a quasi-judicial body, at least in relation to fairness complaints, we believe that its proceedings and reports of its proceedings would attract absolute privilege in any case.

The purpose of granting the Broadcasting Standards Commission absolute privilege in the clause for reports of its proceedings is to define the matter beyond argument and to ensure that the commission may carry out its duties without fear of false allegations of defamation which could embroil its members in lengthy and costly court proceedings. However, I fully understand the anxieties of noble Lords. On reflection, we now believe that it would be more appropriate to remove the entirety of subsection (10).

Viscount Astor: My Lords, I am most grateful to my noble friend the Minister for his response. I believe that I am right in saying that, by stating that they will remove subsection (10), the Government believe they have absolute privilege but they are not entirely sure. Therefore, they do not want to say anything and will leave it to the courts to decide. I must admit that I am not a lawyer and that I am quite lost when it comes to such matters. But, in any event, I am grateful for my noble friend's reply. Of course, I shall have to study it because, as I said, I am not an expert on such matters. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 208 to 210 not moved.]

Lord Colwyn moved Amendment No. 211:


After Clause 94, insert the following new clause--

Use of musical works in broadcast sound recordings

(".--(1) Sections 135A to 135G of the Copyright, Designs and Patents Act 1988 (copyright licensing) (as inserted by section 175 of the Broadcasting Act 1990) shall each be amended as follows.
(2) After "recordings", in each place it occurs, insert "or musical works".").

The noble Lord said: My Lords, we come now to what is probably the final debate of our deliberations this evening. It is a new amendment which relates to a matter not raised in Committee. It is an amendment which I believe my noble friend the Minister will very easily be able to accept as it is very straightforward. I spoke about the matter at length during the passage of the previous broadcasting Bill.

Some noble Lords will know that I am a semi-professional musician and so the broadcasting of music, especially my own, and the rewards that it brings are close to my heart. Apart from that, I have no interest to declare other than the fact that I was a director at the

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beginning of Jazz FM. I should also like to make it quite clear that I have had no interest in any other part of the Bill.

I am in favour of continual expansion in the a number of radio stations broadcasting music. I also believe that those who compose, perform and record the music which broadcasters use should obtain a fair reward for their work and creativity. Those who make music and those who broadcast share a mutual interest in each other's welfare.

The amendments to the Copyright, Designs and Patents Act 1988 in Section 175 of the Broadcasting Act 1990 have been of benefit to both parties. They introduced the "statutory licence" which has allowed new radio ventures to get to air without being impeded by the collective copyright agency which represents the British recording industry. That has been helpful to new broadcasters. On the other hand, the amendments also clarified the role of the Copyright Tribunal as arbitrator between the record companies' copyright collection agency and the broadcasters, leading to fairness, peace, understanding and proper payment and reward on both sides.

However, under the copyright Act, as amended by Section 175 of the Broadcasting Act 1990, only the copyright collecting agency working on behalf of record manufacturers--that is, Phonographic Performance Limited--is covered. Other important copyright societies also license radio companies to use their members' copyright. The Performing Rights Society represents composers and arrangers, for example.

No major disputes currently exist between the collecting societies and UK commercial radio broadcasters, but the amendment that I propose would ensure the same legal framework for the relationship between all agencies that issue collective copyright licences and the radio broadcasters with whom they negotiate.

Recently the MMC gave its view that a statutory licence with PRS is not necessary because it was not in the society's interests not to issue a licence. I beg to differ. As I see it, the very intention of the amendment to the copyright Act in Section 175 of the Broadcasting Act 1990--to enable broadcasters to begin broadcasting and have copyright disputes dealt with by the arbitration skills of the Copyright Tribunal--would be impaired if there were not a parallel entitlement to a statutory licence in respect of the composers' copyright in the works contained on the gramophone records which are already subject to a statutory licence with PPL.

My amendment is, if you like, insurance for the future to ensure proper reward--arbitrated if necessary--for all involved in the British music industry and a climate of confidence for those who wish to broadcast and increase the popularity of the music industry's wares. This is an amendment which would allow the Government to do something positive for the music industry; something more effective and productive than an appearance at the Brit Awards. I beg to move.

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