§ 5.19 p.m.
§ Lord Lloyd of Hampstead rose to call attention to the consultative document on the Reform of the Law relating to Copyright, Designs and Performers' Protection; and to move for Papers.
§ The noble Lord said: My Lords, it was in March 1977 that the Whitford Report on copyright first saw the light of day and, as is often the fate of reports of that sort, it gathered dust for a number of years, virtually neglected by successive Governments and, indeed, by Parliament. So far as I have been able to ascertain, this is the first occasion since 1977 that the report has actually been the subject of a debate in either House.
§ However, the present Government have at last bestirred themselves, and in July 1981 they produced a Green Paper (the consultative document) which is now the subject of our debate, though one cannot perhaps avoid wondering whether, after all those years, it might not have been possible for the Government to reach conclusions and to give us the benefit of a White Paper. Of course consultation is always valuable, but one cannot help wondering when consultation is going to end. When in the introduction to the Green Paper the Government hope for what they call "a lively public debate", one cannot help feeling that, after such a long period of neglect, it is a little disingenuous to look forward to such a prospect. However, I hope that the discussion in your Lordships' House will at any rate provide some semblance of such a debate. I would venture to think that our hope is not so much for soft words at this stage, but for some form of positive action.
§ Yet, despite the long neglect, the importance of copyright law is not in doubt. It provides a legal framework within which considerable areas of our cultural and industrial life are able to function. Unfortunately, however, it is also one of the most complex and technical branches of the law, concealed behind almost impenetrable jargon. In this respect the United Kingdom is somewhat worse off than many other countries, because of the peculiar style in which the Copyright Act 1956 is framed. As the Whitford Report says, the Act may be a draftsman's dream but it has proved a nightmare to those who try to understand 1423 it. The report goes on to cite as an example the difference between the German copyright law and our own.
It might be of some interest to your Lordships to have a comparison between the opening subsections of the two respective pieces of legislation. The German statute, by Article 1, provides that
The author of an intellectual work shall, by the mere fact of its creation, enjoy an exclusive property right in the work effective against all persons".
That is a fairly straightforward statement, I should have thought, of what the Act is about.
This is how Section 1(1) of the English Act begins:
In this Act, 'copyright' in relation to a work (except where the context otherwise requires) means the exclusive right, by virtue and subject to the provisions of this Act, to do, and to authorise other persons to do, certain acts in relation to that work in the United Kingdom or in any other country to which the relevant provision of this Act extends".
That, your Lordships might well think, is something of a mumbo-jumbo, and therefore one might understand why Whitford called for the whole general structure of the Act to be revised in order that the law might be placed on a plain and uniform basis. The Green Paper has replied that it will attempt that so far as possible. But one suspects that what will probably result will be some piecemeal legislation. I would venture to suggest that what is probably needed in this area is to set up a small, expert drafting committee, not to consider changes in the law, but to redraft the Act itself. Of course, it is most important that that process should not hold up the vitally needed legislation, but there seems no reason why that larger process should not go on and develop while the amending legislation is being put through.
§ I now turn to the substance of the report. The Whitford Report is a massive document, which took four years to prepare. It called for a complete overhaul of the law, and made over 100 specific recommendations. I should like here to pay a belated tribute to Mr. Justice Whitford and his distinguished team of eight ladies and gentlemen, who devoted so much of their time, over many years, to assisting the public interest in advising how this branch of law might be amended.
§ In opening this short debate it is impossible to do justice to the wealth of material contained in the report. Therefore, I must be ruthlessly selective and, in so doing, I hope that no one will think that I am overlooking the innumerable matters that I am unable to mention. I propose to concentrate on two areas which have been the subject of particular concern. They both result from technological innovations not even foreseen at the time of the 1956 Act, and which have made further strides even since Whitford.
§ These two areas are, first, photocopying—referred to in both the report and the Green Paper by the rather unlovely expression "reprography"—and, secondly, recording on sound and video cassettes, including video discs, which I understand are to appear on the British market in May of this year.
§ First, I should like to make a general observation. Copyright law has to seek some kind of balance between what might be the conflicting interests of authors and publishers, and those of members of the public. The law sets out to protect the products of intellectual creativity and the livelihood of authors 1424 and artists, as well as the great industries which have arisen in modern times for the exploitation of these products. At the same time, there is the public interest which is served by a legal mechanism which encourages and supports creative work and enables the public to enjoy its fruits.
§ Often, however, it is very difficult to know where the balance is to be struck, and the crux of this emerges in particular in the area of research and teaching, where the taking of copies might be absolutely essential. Does this mean that everyone must first obtain consent of the copyright owner, or pay a fee for every copy that he takes? When copying was a rather laborious affair that was perhaps not a very vital issue, but in the present day, with the ease with which it can be accomplished on a massive scale by photocopying, there is introduced an utterly new dimension.
§ Authors and publishers, on the one hand, see the rapid erosion of their rights by multiple copying of their works. The eductionial world, on the other hand, stresses the absolute necessity of the enjoyment of these facilities if the whole process of instruction and research is not to grind to a halt. Here perhaps I ought to disclose an interest as at any rate something of a part-time author, but I think I can say that that interest is offset by my equal interest in the educational world. So I hope that I can be regarded as being fairly dispassionate on this subject.
§ Whitford saw the only solution as lying in providing a blanket licensing system, on the analogy of the Performing Rights Society in the area of music. However, to make this workable, the committee also considered it vital to curtail the existing fair user and library provisions of Sections 6 and 7 of the Act. The Green Paper is not very explicit on this point, but, as I understand it, it implicitly accepts Whitford's main recommendation about the blanket licensing system, though it has considerable reservations about Sections 6 and 7.
§ We are faced here with a genuine dilemma. How are we to preserve the features of fair user by the taking of single copies, while restraining abuse by way of systematic multiple copying? There is really no perfect solution. Authors must be protected; or the educational world might end up with no tools of research or teaching at all; suitable texts might simply dry up. At the same time, there is a strong public interest in ensuring access to copyright material, either free or at reasonable cost.
§ I would suggest that the implementation of the Whitford blanket scheme would be a considerable advance, and that the important thing is likely to be a long and tedious business—one has only to think of public lending right in this connection—so the sooner we get it started the better. Of course, there will have to be some modification of Sections 6 and 7, but I would hope, at any rate, that there would be recognition of the strong case for continuing exemption in the case of university and similar libraries, particularly in regard to learned periodicals.
§ I turn now to the second problem, which is that of the private recording of audio and video cassettes and discs. Recent developments have effected a technological revolution in our lives. The ease and comparative cheapness with which a recording can be made, either from a disc or from a broadcast programme, 1425 or from another tape, has placed this facility at the disposal of the public at large. The value to the public is undoubted. But what of the copyright owner, whose legal and commercial rights are subject to widespread infringement? There are two aspects here, I think, to he borne in mind. The first is that there is a strong public interest in not being deprived of this facility, provided it is used privately. The second is that it is impracticable to police private copying. Owners therefore have to make a virtue of necessity; but, at the same time, they are surely entitled to the protection of their commercial interests.
§ There is a considerable threat, both to the recording and to the film industry, of which I suggest the Green Paper makes too light. As regards the recording industry, the Green Paper, while referring to estimated losses of some £50 million a year, contents itself with the comment that it cannot really be precisely quantified. As regards films, we are blandly told that the Government are not convinced that video recording harms the interests of film producers. So far as records are concerned, of course, precise quantification is unattainable. Nevertheless, it cannot be denied that the damage is very substantial. Moreover, there is a serious effect on the recorded music repertory, which is steadily shrinking owing to the loss of profitability. So far as films are concerned, I venture to suggest that the Government are ignoring the impact that video cassettes are likely to have on the central area of cinema exhibition, as indeed was expanded in the recently published report of the Wilson Committee, the interim action committee on the film industry, of which committee I had the honour to be a member.
§ The real problem here is likely to arise not so much from the copying of television broadcasts but on account of the widespread copying of prerecorded cassettes and discs. Here it seems to me that the Government are a little naive in their report, because they say that people are unable to copy prerecorded cassettes or discs. I am credibly informed by those whom I believe to be well qualified to speak on this matter that this is far from being the case, and such copying can be effected quite easily. Also, the Government say, it is not worth doing anyhow, but here they appear to overlook the fact that by this copying, as against buying a prerecorded cassette, a considerable saving would be effected.
§ Whitford favoured the German system of putting a levy on the recording machine, the hardware, for distribution among copyright owners. You can of course also impose a levy on the software, on the blank cassette, and this seems a sensible proposal—and I venture to think it deserves more careful consideration than is given it in the Green Paper. The Government's arguments regarding audio are really not very convincing, and indeed in some aspects are rather trivial. For example, they say that part of the levy would go abroad.
§ Their main objections are, first, that on the industry's own figures it would need a £1.40 levy per blank cassette, and that this is more than the traffic will bear. I think the answer to that is that the industry do not have in mind any such huge levy; they would certainly be content, on my information, with a levy of 50p, which probably would not make the cost of 1426 blank cassettes prohibitive. The Government's second main point is that the increase in prices is contrary to the Government's anti-inflation policy. This seems to be quite misconceived. Copyright law surely cannot be framed to conform with a particular Government's economic policies. Copyright law has to have an element of permanence, and cannot fluctuate as economic policy changes.
§ My Lords, I regret that time does not permit my going into numerous other important matters dealt with by Whitford and discussed in the Green Paper. I should have very much liked to have had time to refer to the pressing problem of piracy of feature films, which poses a most serious threat to the film industry. Indeed, the melancholy fact is that London is now the acknowledged centre of this illegal copying trade. I find little consolation to be derived from the fact that one of the main reasons, apparently, why London enjoys this dubious preeminence is because of the superior technical resources that we possess in the film industry, which makes this process more simple.
§ This matter, anyhow, has received some airing as a result of the Private Bill which was introduced the other day by the noble Lord, Lord Fletcher. I should have thought that there was at any rate clearly a strong case for tightening up the law, and particularly putting increased penalties in the place of the really derisory level of penalties for which the present law provides. Other noble Lords will doubtless wish to deal with some of these matters in greater detail, but I have more than exhausted the appropriate time allotted to me and, accordingly, I beg to move for Papers.
§ 5.38 p.m.
§ Lord Ardwick
My Lords, we are all indebted to the noble Lord, Lord Lloyd of Hampstead, for initiating this debate. As he said, it is a large and intricate subject, and we cannot do full justice to it in a short debate. However, many of the proposals in the Green Paper could be discussed only by professionals and by well-briefed interest groups, for the problem of protecting their copyright demands a knowledge of practices and techniques which most of us are unlikely to possess.
Indeed, some of the Green Paper, let alone the Act istelf, is hardly comprehensible for this reason, and because the authors of it have been too economical of space as they have ranged across problems from gear wheels and exhaust pipes, through grand opera to computer programmes via satellite television. However, there is an important range of problems which immediately affect us at the receiving end—the problems which the noble Lord discussed, arising from reproduction in sound and in pictures, in voice and in vision.
A difficulty arises because many of us have been reproducing copyright material for our own use over a number of years, first by our tape recorders, then by the photocopier and finally, perhaps, by video, and the owners of the copyrights have so far muttered a good deal but they have made no effective protest against what has been a fast developing practice. So now, when we are confronted by proposals to claim copyright, we feel as the villagers might do who have been crossing a field for years and then suddenly find that they have no right of way in law and the farmer wants to block the entrance, or even put a bull in the field 1427 to scare them off. The fact is that the record makers have been contemplating something analogous to the bull frightener. They have been searching for a device, inaudible when a record is played but which will make a nasty noise on a tape taken from that record. They have not, it seems, conquered the technical difficulty. I hope myself that they never will. I tape my own records because I find that tapes call for less effort to play and are less easily scratched than is a record. But, first, let us look at what is horribly called, in a kind of Latin-Greek mix up, reprography—a new vice which all of us practise here in our House of Lords Library.
Of course, it has always been accepted that a person could copy bits from a book by hand or even with the help of a typewriter, and it has long been the practice of the teachers to copy out and reproduce passages from text books, from literature or short poems and then to distribute them to the class. One of my earliest childhood recollections was of being given a copy of some verses by Walter de la Mare. But the teacher had to expend considerable effort. She had had to write this out in script and then to reproduce it by a primitive device colloquially known as a "jellygraph". No doubt many people will recall when handwritten letters were duplicated before being sent out. They were duplicated in a great Victorian device, a press-copying book. At a time in my life when the summit of my ambition was to become a clerk at Manchester Town Hall, I had to learn how to use a press-copying book.
Reprography was in its infancy during our childhood and, as long as it was arduous and the quantity produced was modest, this form of reproduction was happily accepted. But the photocopier of today, as the noble Lord has said, is so easily operated and so quick as to encourage proliferation. It adds enormously to the efficiency of teaching. The other day I came across an adult student pouring over a dozen pages of James Joyce's Finnegan's Wake. He told me that all 15 members of the class had received these reproduced pages from their diligent teacher. Previously she would have had to read out the passages aloud and her students would have had to wait to borrow the book. Since they were doing a score of books in the year, it would have been impossible for the college to provide each of the 20 books for all students; but before the day of the photocopier the college might have felt it necessary to provide two or three copies of each of the books; and so there was probably a loss to the publishers in the use of the photocopier in this context.
The practice is to some extent defensible, as the noble Lord has said, when it performs a public good such as in formal education. But this is only part of the story. Many large business firms today have libraries or information units staffed by people familiar with the technical processes and business environment of the firm. It is common practice for these people in the information departments to milk the learned journals and trade magazines for items of particular interest to the firm's executives, to photocopy them and to distribute them around. Previously these firms might have taken several copies of the journals and worked out a distribution plan so that each executive could have a sight of them within a few weeks.
It is this wholesale use of reproducers that disturbs 1428 publishers, and it is not unjust that they should now try to get some reward. The problem is: how should the money be collected? How much should be collected, and from whom? And how should it be distributed, and to whom? One of the difficulties of the subject is that nobody knows how much of this illicit wholesale copying goes on, and how much it damages the sales of copyright works. How does one find out what happens between consenting adults in private?
My Lords, obviously one cannot. The old Whit-fordians recommended blanket licensing of libraries. The owners of copyrights should transfer them to a central collecting society which would levy royalties at standard rates and then disburse them to the original copyright owners. But the Whitford Committee went further. They wanted to remove those sections of the 1956 Act which permit a student to make a facsimile copy for himself for private study and permit the users of the library to buy single copies from the librarian. I think that the Government were quite right to purse their lips and to frown upon this suggestion from the Whitford Committee, although they are willing to tighten up Sections 6 and 7 to prevent or deter abuse.
Of course, it is true that libraries able to give the limited facilities permitted by the section might not find it necessary to take out a licence under a blanket scheme. But if they want to do more than the law now allows, they would have to pay the licence fee. It seems from this Green Paper that already, under the existing law, the copyright owners could band together to create licensing schemes, certainly for industrial and professional organisations, although it would obviously be useful to have an official copyright tribunal to judge disputed rates and conditions.
The British Copyright Council join Whitford in wanting these permissive sections to be removed. They seem not to believe that educational institutions would behave properly and might break the law which would forbid multiple copies of the same material. I do not think that this would happen in educational circles and, if this was applied to schools and universities, I should have thought that the authorities could easily keep a check on what is going on simply by the amount of expensive paper which is used.
My Lords, I have spent some time on this limited aspect of the Green Paper because I think that this is the most important section of the Green Paper. It is most important because it is concerned with education and with the transmission of knowledge and information. The problems set up by tape recorders and video recorders are concerned to some extent with culture but largely with entertainment, with fun. Reprography diminishes our ignorance and adds to our inadequate stock of knowledge; but gramophone records increase what, even without them, would be a pretty adequate supply of entertainment.
With the tape recorder, one must start by saying that not everyone uses them for music and, of course, even for those who do, it is not always gramophone records that they tape. Recorders can be used for a variety of purposes. They are excellent for language studies and for the effortless jotting down of ideas about a book that one is reading, for passages that people may need to know for examination purposes, for drafting essays and speeches. I should imagine that all the students of the Open University tape record 1429 the lectures that are concerned with their courses.
The suggestion of a levy on tape recorders to reward copyright owners is not acceptable, but a modest levy on blank cassettes might be accepted because those who use the recorder as an aid to study need to buy only a limited number of cassettes and, as a great deal of the information on them will be ephemeral, they can be wiped off and used again. It is not unreasonable, however, that the tape should bear some small levy once we put out of our minds the absurd idea that almost every tape made is a record sale lost. Many people will tape a record which they would not dream of buying.
The figures given in the Green Paper do not enlighten us very much. From 1973 to 1979 the economic lean years following the oil crisis—the number of trade deliveries of LPs stayed consistent at about 100 million a year. Almost twice as many people in that period gained access to a tape recorder. The sale of blank cassettes doubled to 35 million a year. To make much of these figures one would have to know a lot more about changes in population, age, income, tax rates and so forth. Yet at the end of it common sense tells one that record companies lose quite a bit, that some people who would buy a particular record avoid doing so by recording a borrowed or a broadcast record.
The Green Paper asserts that to give a degree o compensation would need a levy that was a high percentage of the sale price of tapes. They base this on a survey made in 1977 when 35 million blank tapes were sold, and the conclusion was that their use for unauthorised recording cost the industry 25 million lost sales.
I cannot take this seriously. The assumption that the majority of people who spent something like £1.30 on a tape, would have spent nearly a "fiver" on an LP, does not accord with common sense or everyday experience. Accepting for the moment this figure, the Green Paper estimates the loss would require, as the noble Lord has said, a levy of £1.40 on every tape of this length, which would more than double its price. Obviously, a levy of that kind would kill the tape and the recorder industry.
The White Paper, however, comes to the sensible conclusion that the losses to the record industry cannot he measures, and so if a levy is to be put on the tapes, the percentage is an arbitrary one. Wisely, the authors refrain from saying what that percentage should be. It is, they say, a matter for the Government and they would wish to consult the industry and the consumers.
My guess is that in the end the copyright owners may get a very modest compensation for unquantifiable losses, just as authors get a modest sum for the multiple use of their works in libraries. The number of cassettes sold, according to one of the publications of the British Copyright Council, is 60 million. At 50p each that would mean handing over a sum of £30 million to the companies. That is quite a considerable sum in total. But there is no encouragement even for such as this in the Green Paper.
The Copyright Council's heart must have sunk when they read the dread conclusion:The Government has still not received convincing evidence that the introduction of a levy on audio or video equipment or blank tape would provide an acceptable solution; at the end of 1430 the day it may have to be accepted that there is in fact no acceptable conclusion".Still, all is not quite lost. They say:The Government however would welcome a public debate before reaching any final conclusions on the matterSince, however, the industry has already made its views clear, the only people who have not yet been consulted are the consumers. It is very hard to believe that they would support for one moment any idea that the price of tape recorders or tapes should be increased.
The Government have, one notices, carried on the logic of the tape recorder to the video recorders, which of course are now in a phase of explosive development. There is a tremendous difference between people recording televised material for their own use and the pirates who are making copies for sale and costing the industry very heavy sums of money. However cautiously one approaches the subject of a levy for private recording, one must hope that the Government will do all they can to stop the piracy. We have already explored that subject a week or two ago, in the debate on the Second Reading of the one clause Bill introduced by the noble Lord, Lord Fletcher.
The Government, I suggest, should give this Bill the little parliamentary time it needs. It is not enough to say that the Government will not hinder the Bill, which was the reply which the noble Lord gave at the end of the debate; they should really say that they will give some positive help. It is obvious from the Green Paper that with a subject so complex and fraught with difficulties and controversies—unresolved controversies—it is going to be a considerable time before we see a Bill giving a substantial reform of the law of copyright, and the delays are even greater because there is a temptation to wait until there is a European directive on the subject. As one knows, the Community do not act exactly at the speed of light. I think that it will be quite a considerable time before we see a Bill on this subject. In the meantime, the publishers should think again about the Government's suggestions. I do not think that it is going to be possible to persuade any Governments to abolish the permissive sections (Nos. 6 and 7) of the Copyright Act.
But will these permissive sections, if they are amended really make the blanket licence worthless, as the Copyright Council suggests? Surely, if the law allows the copyright owners to protect their right by the use of blanket licences, they should make every endeavour now to protect that right. If it proves in practice to be worthless, then they have a strong case for asking the Government for legislation.
§ 5.56 p.m.
§ Lord Perry of Walton
My Lords, I too am grateful to the noble Lord, Lord Lloyd of Hampstead, for initiating this debate, for although I wish to speak on only one matter it is, I believe, of some importance. I refer to the relationship of copyright ownership to education. The nature of the educational process has been changing and will continue to change very fast because of the explosive growth of communications technology. It may still be true that education requires only a teacher, a student and possibly a blackboard, but it is no longer practicable on a large scale. Teaching materials as aids in the process are already common. Books have, after all, been with us for a long 1431 time. Even in my young days there were wall charts and slides as well as the jelly graph. Very soon, however, we will have studio and video recordings on tape, disc and film. We will have recorded programmes of computer assisted learning; we will have individual access, via a terminal with a monitor screen, to central computer stores of reference material of all kinds, and we will have other aids based on technology not yet developed, although someone may already be dreaming of them.
Changes of this magnitude raise new problems of copyright. In the Open University we had to think of them rather sooner than most people because the university was to depend on the new technology to reach students in their own homes. It was decided at the outset that conditions of service for academic staff would make it clear that all copyright and teaching materials would vest in the university. I am perfectly certain that this was the right decision. I am equally sure that it is a condition that will have to be applied in future to the staffs of all Government funded educational institutions. I am not trying to take away from individual teachers their rights to make extra money in other ways on the books that they have written or the learned works that they have written. It is therefore vital to define very closely what is meant by "teaching materials". Lecture notes clearly are—text books clearly are not.
In the Open University, staff were given the right to determine the date on which their teaching materials should be withdrawn because they were out of date; and we undertook to permit them to use teaching materials where they wished as pieces of a privately published book or other work. But just as I am clear about it being right and proper to do these things, I am equally clear that there is no justification for payments to a teacher whose lecture notes, for instance, prepared for use in one university, are used in another. But this is the current understanding and it has meant that there has been very little exchange of teaching materials in this way. This perhaps does not matter very much in the case of cheaply-produced lecture notes or slides but it will matter very much with expensive video tapes and expensive recorded programmes of computer-assisted instruction. One hour of student instruction of this type may require one-quarter of a man-year of academic staff-time to prepare, to say nothing of the costs of recording.
Thus it is commercially essential that such teaching materials are used by large numbers of students, and this may require their use in more than one institution. This should not be inhibited by copyright restrictions. If one member of staff in each of 45 universities made one video-recording and all 45 recordings were used in all 45 universities, then, if any award were paid to individual authors, no less than 1,980 such awards would be payable and the taxpayer would have to foot the bill. He already pays the salaries of all 45 members of staff and supports all the students. He should not be further burdened. I hope that the Government will take all the steps they can and will encourage others to take steps, where necessary, to ensure that we do not get into this position.
There is just one other point I should like to touch on. The Whitford Committee has recommended that 1432 when copyright in a work vests in an employer it should be the case that:if the work is exploited in a way not within the contemplation of the employer or the employee at the time of making the work, the employee should have a statutory right to an award from his employer.I very much hope that the Government will reject this recommendation, which can only make the situation worse. It is always difficult to determine what was or was not contemplated; it is wholly impossible to contemplate the technology of tomorrow. The proposal would be bound to cause friction and to inhibit the exchange of teaching materials. The present Copyright Act of 1956 is better left unchanged in this respect.
§ 6.2 p.m.
§ Lord Colwyn
My Lords, I am most grateful to the noble Lord, Lord Lloyd of Hampstead, for initiating this debate this afternoon and for bringing the consultative document to our attention. At the risk of boring your Lordships, I also wish to confine my remarks to the problems of the record industry. In doing so, I must declare an interest in that I am a member of the Musicians' Union and I have a group of musicians who have made records and intend to make many more. Having personally financed the making of one LP, I am only too well aware of the way in which the collective skills in manufacturing records can be cheaply copied by members of the public, who then enjoy the product without contributing any cost to the production whatsoever.
The British record industry is a major export earner, with a 25 to 30 per cent. share of the American market, which itself constitutes one-third of the world market. Its trading activity is valued at an annual total of £1,500 million. The large companies have never sought legislative assistance for their problems, as can be seen with their recent success in bringing commercial piracy of their products to below 3 per cent. in the United Kingdom and the prevention of dumping within the EEC of cheap, often pirated, products through action in the European courts.
In 1973, 30 per cent. of the adult population in this country had access to a recording facility—now it is probably in the region of 70 per cent. I think that my figures may be possibly at some variance with those of the noble Lord, Lord Ardwick, but the sale of blank cassette tapes has risen from 15 million per year in 1977 to a figure probably in excess of 70 million at the moment, of which 98 per cent. are manufactured elsewhere.
§ Lord Ardwick
My Lords, if I may interrupt for one moment, in the Green Paper it goes from 15 million to 35 million but in the paper which was distributed by the British Copyright Council, it goes up to 60 million. You have now added 10 million to that; so at 50p per go that is £35 million for the industry.
§ Lord Colwyn
My Lords, I am grateful to the noble Lord and I am sure that between us we are pretty near to the actual figure. The evidence that vast sale losses are occurring is undeniable. It is estimated that over 200 million LPs are copied every year and that between 50 million and 60 million of those copies 1433 prevent a legitimate sale. This represents about half the United Kingdom industry's current output and about £100 million per year lost by the rights owners from private copying. The industry is now faced with such an enormous problem that it is unable to remedy matters without governmental assistance. The business of home taping is a massive and uncontrollable form of law breaking, for under the present Act it is an infringement to make a recording of a piece of copyright music or of a copyright record.
The law has to change with the times. It would be impossible and impracticable to prevent the copying of records and broadcast items; but some way must be found to compensate the artists and manufacturers for this massive loss in revenue. Successive Governments have always accepted the principle that the fruits of intellectual endeavour should be protected, and this county has traditionally led the world with its protective legislation.
As a musician, I am very aware of the shortage of work for other members of the profession. The number of recording sessions has been cut back, particularly in the classical field, and I feel that this lack of work is due to the growth of home taping and the inadequate protection for our musicians, composers and artists, together with the record companies and publishers. The vastly broadened repertoire of the record business over the last 20 years has made a wide catalogue of music available and there are signs that, largely because of home taping, the recorded music business will be unable to keep this very broad spectrum of music on the market. The music profession has never been an easy one: life as a musician is precarious and there is a relatively low level of government support for music in this country.
I feel that the proposals in the Green Paper are very disappointing in relation to the record industry and to our musicians, who have brought us to the top in world standards. The issue is really very clear—all civilised nations provide some protection and assistance for creative workers. Rapid technological advance makes it essential to keep these protections under constant review.
New technology is rapidly changing our daily lives. How can the manufacturers of video cassette machines, video disc players, cable TV systems and satellite broadcast systems expect anyone to buy their products if there is nothing to show on it? There can only be a product to show if there is a commercial return available for the producers of the product, and there can only be a commercial return if the product is adequately protected both here and abroad. The music industry are united in their response to the developing situation. It was a pleasure for me to meet the Musicians Union secretary, Mr. John Morton, on Monday and to learn that he is in complete agreement with the proposals formulated by the record companies and the British phonographic industry.
Because many citizens are now unwilling lawbreakers, the Government have only three possible courses of action. They can ignore the matter; they can take away the protection at present afforded by the law; or they can act to remedy the situation. I know the Minister has been provided with comprehensive details of the music industry's scheme, so I will not go into too many details of their proposals except to 1434 say that these problems can be solved by charging a royalty on the sale of blank tapes. The industry are entirely happy that they have the machinery to impose and collect this levy, probably with existing copyright protection societies. They have proposed details of the allocation of the money which would benefit the artists and manufacturers and which would also enable the support of a music development trust fund to promote music and musicians who would not otherwise be recorded by commercial companies. The Green Paper admitted, and the music industry agree, that a figure of £50 million would have to be recovered annually to make good present losses. The allocation of this loss to a levy on blank tapes would certainly double the present cost of an average C.90 tape. The Government may feel that it would be a better idea to make the tape levy smaller-50p has already been suggested—and combine it with a flat rate levy on the sale of recording equipment, as suggested by the Whitford Committee. I feel sure that the record industry would agree to this, as there is no doubt that replacement of existing recording machines contributes greatly to the hardware manufacturers' annual turnover.
I am aware that any increase in costs is against the Government's policy, but I feel sure that the sale of cassette tapes and recording machinery has very little influence on their computations for the cost of living. I am assured by the music industry that the problems of exemption from the proposed levy for tapes of 15 minutes or less, and for cassettes for pre-recorded books for the blind, will be easily accommodated in their plans for collection. The Green Paper also suggested that by pre-recording some trivia on the blank tapes, or by setting up direct mail order depots outside the United Kingdom, the levy could be avoided.
It is the music industry's firm belief that, as the majority of tapes are manufactured by reputable companies, and that as they are well aware of the problems affecting the industry, this simply will not happen. They also believe that reciprocal arrangements with other countries, as they inevitably change their copyright laws, will eliminate the problem of a small percentage of the levy going abroad when non-United Kingdom recording companies, writers or performers are involved. I think that the record industry have got it right, but they do not have long. I urge the Government to give their proposals in this field urgent consideration, and I hope that reform of the copyright law will be given a high priority.
§ 6.12 p.m.
§ Lord Somers
My Lords, I, too, am extremely grateful to my noble friend Lord Lloyd for having introduced this debate, because it is a subject that is not debated very often in your Lordships' House, and it is one that rightly needs discussion. The noble Lord referred to copyright law as being a nightmare when you try to understand it. I sat on the Copyright Council for a time and I must say that, at the end of that time, I was completely at sea regarding certain aspects of it. Nonetheless, we must do our best, as everybody has said during the debate, to protect the rights of those who produce creative work. I suppose that I must declare an interest here, in that I now have one published work—I had a few more at one 1435 time—and, therefore, I suppose that I come into that category.
One of the chief problems, certainly, seems to be tape recording in the home. Here I speak with ail due apologies to the noble Lord, Lord Ardwick, because I know that he does not record any copyright work. But a lot of people do, and the figures that I have been given of the estimated loss on the sale of records are these; in 1977, £75 million, in 1980, £200 million and I have no doubt that the figure will go on rising. As I think the noble Lord, Lord Colwyn, said, 98 per cent. of the blank audio tapes come from abroad. There is no major British manufacturer of blank tapes.
The rights which are hit come under three chief headings. There are the manufacturer's costs, there is the composer's royalty which comes via the publisher and, of course, there is the artist's royalty. Your Lordships have heard that the British phonographic industry have recommended a levy on tapes, which I think would be a very workable way of solving the problem. I do not see why there should not be a different levy for short and long tapes, because there is no doubt that it is the long tapes which are chiefly used in the recording of music.
One must remember that every time one makes a home tape, as it is called, one is acting in contravention of the Berne Convention, of which Britain is a signatory, and which reads:Authors of literary and artistic works protected by this convention shall have the exclusive right of authorising the reproduction of these works in any manner or form".Therefore, composers have a right to allow or to prevent the reproduction of their works. But, unfortunately, under present-day conditions they have no earthly way of enforcing it. Therefore, it seems to me that the present law of copyright is very little but a farce.
One cannot possibly go around policing home tapes, as has already been said. One must allow people to make what tapes they like, and to be guided by their own consciences as to whether or not they record something. Much the same problem exists as regards photo-copying. Many schools and education centres have photo-copying apparatus, and I firmly hold that they should be allowed to have them without any restriction whatsoever, provided that the copies which they make are used purely for educational purposes. I think one would find that that regulation was very well held to.
Finally, I should like to mention one anomaly which I have always felt exists in copyright, and that is as regards the composer's copyright. As I have never written a book I cannot speak with any authority, but I believe that the author gives his publisher the licence to print, but himself maintains the copyright for his book. The poor wretched composer has to hand over his copyright to the publisher when he has a work published; otherwise, the publisher will not take it. That seems to me a totally unfair, unjust and unreasonable way of working. I cannot see why the same conditions cannot apply to the composer as to the author. Of course, the composer also gets performing rights whenever his works are put on, I remember that one year I received a magnificent cheque from the Performing Rights Society for £1.40. That was my income for 1436 that one year. Of course, other composers have done better, but it is not a lucrative profession and I think that all protection should be given to artistic creators, who are doing their best to lift us out of the ordinary everyday world.
§ 6.20 p.m.
§ Lord Willis
My Lords, I should like to join other noble Lords in thanking my noble friend Lord Lloyd of Hampstead for introducing this debate, which is very timely. I have also to declare an interest, in that I am an author and the owner of a copyright. I am also chairman of the Authors' Lending and Copyright Society, which collects royalties and other sums of money for authors from various parts of the world and from various organisations.
I also share the concern that has been expressed today at the Government's Green Paper on the reform of the law of copyright. Indeed, in common with the British Copyright Council and the 27 organisations it represents I was shocked by the tone of the Green Paper and by its content. It would be unfair to let this debate go by without letting the Government understand the very great anger and impatience which exists in the industry and among copyright owners about the dragging of the feet which has been going on on this issue.
My initial reaction, after reading the Green Paper, was that the Government did not care a tinker's damn about copyright, copyright owners, authors, composers or publishers. If your Lordships think that this is a heavy charge to make, consider this: as the noble Lord, Lord Lloyd of Hampstead, said, seven years ago the Whitford Committee was appointed to review the law on copyright and to make recommendations as to its reform. It sat for three to four years. It took evidence from dozens of interested organisations and individuals, evidence which took money and time to prepare, and four years ago it presented its report, a report covering a thorough review of copyright law and containing over 100 well-considered recommendations.
The Government reacted to this report with all the speed and enthusiasm of a crippled tortoise. Three and a half years later they emerged from hibernation with a Green Paper. They brushed aside Whitford's most important recommendations and, after a total of seven years of public debate on the issues, decided that there was a need for a lively public debate on the issues. Moreover, it set no time limit on this new period of debate. It could, presumably, go on for another seven years, by which time our existing law of copyright will be as much good as a leaky bucket at the scene of a major fire.
What is astonishing about the Green Paper is that it is full of the most extraordinary contradictions. It begins, solemnly enough, with statements like "Copyright exists to protect the products of intellectual endeavour", and "(Copyright) serves to protect the individual against plagiarism and ensure reward for his intellectual efforts". Fine, marvellous, wonderful—congratulations! But then, through 60 pages of argument, it proceeds to demonstrate why, in this technological age, such protection is impossible or, at best, too difficult. It not only abandons Whitford's most vital recommendations. It abandons the field, retreating with the cry that we need more debate, more 1437 time, that nothing can be done, that the issues are not important, anyway.
Take the issue of home recording which has been touched on today by several speakers. As your Lordships will know, the invention and development of the audio tape and, more recently, the video tape has led to this enormous increase which has been referred to. You can now record, if one can make a new phrase, music from records or films and programmes from television in the "piracy" of your own home. This is illegal. This is theft. I was a little dismayed by the tone of the noble Lord, Lord Ardwick, on this matter. It is not quite so simple and quite so easy as he suggested in his speech. He referred—using it, I have no doubt, as a shorthand—to "the industry" and to the fact that "the industry" was complaining of its losses. If the noble Lord cares to look again at the Green Paper, he will see from the figures for the sale of one gramophone record, when broken down, that the money received is distributed to dozens of people. We are talking about composers, lyric writers, shopkeepers, all of whom are robbed of a huge amount each year just as surely as if their pockets were being picked or their safes broken into.
Why on earth do people buy a blank tape? Your own common sense will tell you: they are buying it because they want to record something. And what are they most likely to record? Music, poetry, plays—all the things which are written and put on the radio or on records. That is why they buy blank tapes. So do not turn round and tell people in the business, like myself and the noble Lord, Lord Colwyn, who has spoken, that this is not very a important problem. Millions of blank tapes are being sold and they are being used to steal our property.
What is the Government response to this widespread flouting of the law? They argue, in effect, in the Green Paper that since millions of people make illegal recordings, and clearly enjoy doing so, it would be highly unpopular to stop them doing it. This is rather like saying that if mugging is widespread in a certain district nothing should be done by the police to stop the muggers' enjoyment. Surely a law is a law. If it cannot be upheld, then it needs to be revised. The worst possible thing is to allow an ineffective law to creak on without adequate revision.
I am not suggesting—neither did Whitford or the British Copyright Council—that we should appoint an army of uniformed wardens to invade people's homes to see what they are doing. What was suggested is the solution which has been mentioned by other speakers. It is neat, simple and it has been well tried. For years the Mechanical-Copyright Protection Society has operated a scheme under which the importers of records from North America and certain other countries have to stick a stamp on each record. I believe that the stamp costs them 61¼per cent. of the retail price. Some 2 million such stamps are sold each year and the money, calculated by computer on the basis of a sample, is distributed to the copyright owners—to hundreds of people.
That would be a very effective and straightforward way of plugging this hole in our copyright law. The machinery is there and it is very simple to operate. For a small cost, the home recordist would be acquitted of piracy, and each tape he purchased would bear a 1438 levy stamp. And, as the Green Paper puts it, the "intellectual endeavour" of the producer would thus be rewarded. It has been suggested by the noble Lord, Lord Ardwick, that if you put a 50p levy on every blank tape it would bring in far too much money: £35 million, £50 million, what-have-you. We are being robbed of far more than that, I do assure my noble friend. In fact, that is a small sum in recompense. There would still be a loss.
It might also be necessary to introduce, as the noble Lord, Lord Colwyn, said, a small levy on the equipment itself, especially in the case of reprography, to which I will turn in a moment. The Government, however, in the Green Paper—this is what worries me, and shattered me—virtually reject this straightforward solution on the grounds that it might be too expensive for the purchaser of the tapes or for the purchaser of the equipment. The fact that it is already very expensive for the copyright owner—for authors, composers and so on—is not taken into account.
The Government then make the absolutely extraordinary claim that it also might be inflationary. Inflationary, my Lords? Surely copyright has nothing to do with the economic policy of this Government, or any other—as the noble Lord, Lord Lloyd of Hampstead, said. Copyright is a moral right which even the Green Paper recognises. Since when has it been possible to qualify or modify a moral right on the argument that fully to uphold it would cost too much? In this country we have the moral right and the constitutional right to general elections. Supposing a Government were to turn round and say "We cannot have this right any more because it is too expensive"? It is a very dubious path to tread when you accept a moral right on the one hand but deny it on the other by saying that it would be too expensive.
What I have said about home recording applies also to repography. Nobody wishes to restrict the right of students and genuine researchers to reproduce the material which they need for their studies. But there is evidence—and much of it was presented to Whitford—that repography is being abused, again at the expense of the copyright owner. In many colleges, universities and schools round this country they are wickedly and irresponsibly stealing copyright material. I do not want to stand between what is the right of students and the right of schools. But particularly because of the cutback in the allowances to schools, through the rates and so forth, they are being forced more and more on to this path of piracy. And any educationalist in any educational establishment, if he is honest, will tell you that what we regard as the free right is being wickedly abused. It ought to be stopped.
About a year ago I was in a school office where I saw one of the secretaries running off 24 copies of a play by a colleague of mine. She was reproducing them from one copy of the play purchased at a book shop or perhaps purchased by the school. For what purpose? For the school's amateur drama society. My colleague is not going to miss the couple of pounds he would have made in royalties on those books, but it is not a very good education for children to realise that property can be stolen in this way, and it is theft. Multiply that one example, as one must, by hundreds of similar infractions and it adds up to a very considerable sum.
1439 Here again, a fluid licensing system enforcible by law would solve the problem, or would go a long way towards doing so. There is no real difficulty in doing this. There is no need for further public debate or consultation. Everything is already there. The technology exists to implement most of Whitford's recommendations and the organisations are already in place to handle the administration without undue overheads or any cost to the Government. Indeed, the Government would gain because by restoring this lost income to its rightful owners, the Inland Revenue would benefit.
What is needed is the political will to bring the copyright laws into line with the present conditions. The present law has been out-distanced and out-dated by modern technology. It needs to be changed as a matter or urgency. In asking the Government to reconsider their attitude—or at least indicate a timetable for reform of copyright—I am thinking not only of the interests of copyright owners. It is in the interests of all that our arts, and the industries which support them, should flourish. In crude economic terms, they earn millions of pounds for the economy and do a great deal for the prestige of Britain abroad. But they would not have been able to do any of this without the copyright protection which at present exists—and they will not be able to do so in the future unless that protection is brought up to date.
A long time ago, the forethought of our fathers' fathers devised the notion of copyright, enshrined it in legislation, and thus laid the foundation on which artists, authors and composers could live and work. We now have the task of protecting the interests of new generations of creative artists. I hope that it will not be said of us that we failed to respond and that we failed to recognise that copyright was indivisible; that if one allows one part of it to weaken, then the whole fabric will collapse.
§ 6.33 p.m.
The Earl of Gosford
My Lords, I should like to join with the ever-increasing list of noble Lords who are indebted to the noble Lord, Lord Lloyd of Hampstead, for bringing this debate at last to the Floor of this House. I want to make only one or two remarks and to underline a few points—some of which have already been submitted by the British Copyright Council—and seek clarification on one or two items in the Green Paper. I must declare an interest as a visual artist and also as the Artists' Union's joint representative on the British Copyright Council. The council brings together 31 bodies (and the number has increased by four since the noble Lord, Lord Willis, spoke a few minutes ago) representing the owners of copyrights under Part I of the 1956 Act: that is to say, authors and creators in the broader sense—literary, musical, dramatic and visual—as well as publishers. In this respect, I believe that the British Copyright Council is unique in the world.
The nub of the problem is that "rights" are a livelihood to the creator. Until these rights are established world-wide, the creator will be vulnerable. Whatever our views on the EEC may be, proposals beneficial to the creator are established in Europe, where the concept of authors' rights is fully understood 1440 and accepted. In this country the same right is seen as a property right and not as an author's right. One could say that it is an intellectual property right.
There is an urgent need for action. Technology has overtaken the 1956 Act and is now overtaking even Whitford's recommendations made in 1977. New technology is here to stay and must be faced. Creators have no way of controlling events. Already, people have forgotten that they are copying illegally. Reprography, video and audio have already been mentioned, and we have yet to cope with the newest technology represented by satellite and cable TV. Without the immediate entrenchment of these rights in legislation, the creator is going to lose rights granted by international treaty to which the United Kingdom is party. The British Copyright Council is therefore most anxious about the fact that the Green Paper talks of "several" recommendations only out of more than 100 recommendations made by the Whitford Committee, which was appointed seven years ago and reported four years ago on its "thorough review of copyright law".
The Council also dissents most emphatically from the way the Green Paper wriggles, eel-like, out of its responsibilities towards the livelihood of creators, by implying that,copyright laws must be framed in the light of contemporary economic conditions".The Green Paper upholds "moral" rights, but maybe the noble Lord, Lord Lyell, will elaborate on the term "reasonable modification". Yet, in the "ownership" section, by not emphatically stating that copyright is owned by the creator in all circumstances, Her Majesty's Government are not being consistent. The United Kingdom is isolated in this, as in several other points, as regards provisions in Europe. There is no mention of "paying public domain". This novel way of gleaning finance from all works after the expiry of the life plus 50 or 70 years is for the common good of the community of artists as a whole.
Lastly, I must turn, as a visual artist, to the glaring omission of droit de suite, or artists resale rights. As stated by the Whitford Report,the inalienable right of the author, or his heirs, to an interest in any resale of original works of art and original manuscripts is provided for in Article 14 ter of the Berne Convention".Whitford recommended that artists' resale rights should not be introduced in the United Kingdom, largely because it was thought that the scheme would be difficult to administer. The Green Paper does not feel compelled to introduce it either. Since Whitford—last year, in fact—the Visual Artists' Rights Society has been set up to collect copyright fees and also to press for legislation in favour of ARR. The steering committee comprises representatives from the Art Registration Committee, the Artists' Union, the Artists' General Benevolent Institution, Artlaw Services, the Arts Council of Great Britain, the Association of Artists and Designers in Wales, the Association of Fashion, Advertising and Editorial Photographers, the Association of Illustrators, the Crafts Council, the Federation of British Artists, the International Association of Art, the Printmakers' Council, the Royal Academy of Arts, the Royal Institute of British Architects, the Royal Photographic Society of Great Britain, the 1441 Royal Society of British Sculptors, the Society of Industrial Artists and Designers and the Welsh Arts Council.
Visual artists are alone in this respect. Once the created object has been sold, it can then pass through many hands with the creator deriving no benefit. Many a "middleman" is making an excellent living out of such works. There is a huge market in this country for the works of dead artists, whose families or heirs receive no benefit. The argument that only rich artists become richer from this scheme is unfounded. Recently, for instance, the London Borough of Tower Hamlets introduced artists' resale royalties in their picture buying scheme.
Harmonisation is essential here as in other copyright matters if works are not to escape to countries which may not have artists' resale royalities legislation. Collection is simple in those countries that have this: a few hours of computer time a week are all that are necessary. There is a strong feeling among visual artists that they are owed a share in what they have created, and that is why I read out that long list of organisations in the steering committee of the Visual Artists' Rights Society. For them and for all creators the Government must act quickly and positively. We must not be carried away by the wealth of stars. Many thousands of creators are hardly making a meagre living. Harmonising of copyright laws must be the aim universally. Without strong rights backed up by legislation, and effective means of implementation, the author or creator will remain in a weak or impossible position. Without artists making a living, we are going to have no art.
§ 6.42 p.m.
§ Lord Jenkins of Putney
My Lords, the noble Lord, Lord Lloyd of Hampstead, has done us a great service because he has enabled us to demonstrate in the House two very important things which have been revealed in this debate; first, a strong sense of urgency in the matter, a strong feeling expressed by every noble Lord who has spoken, that all of us—I do not make any party point on this—have failed to give this subject the urgency it deserves. And this has been the case more recently because, with the widespread development of home taping of both audio and visual character, the subject has now acquired an extraordinary importance, to such a degree that, if it goes ahead without being arrested, will have two disastrous results.
The first is that the development of home taping must necessarily lead, and is already leading, to widespread commercial piracy, so that the whole situation is being undermined, the whole basis of the recording industry in this country is being affected. Already the effects of that can be seen in this way. It has long been the case, for example, in gramophone recording, that the profitable popular music end has subsidised the more classical end, the less profitable end. Profitability in the industry has been held back and the range of programmes of classical recording which have been characteristic in the British industry have been considerably reduced already and unless something is done they will run right into the ground. So we are up against a serious problem.
The only other point I want to make on that aspect is that this is unanimous; it is not only the recording 1442 companies we are concerned about; it is also what are sometimes called the "talent unions" which are wholly in favour of this project because they recognise that unless something is done fairly rapidly they will not have an industry to be engaged in in a year or two. It could be as serious as that.
The figure of 50p has been mentioned as a possible one on a sound cassette. I think that is the sort of figure which would produce a very reasonable result. The figure of £1.40 on a cassette is not anybody's figure but the Government's. They have presented the highest possible figure in order to suggest that this is something which would be widely objected to and would have the effect of creating public resentment against the whole development. It does not need to go at that level. But I think it is equally important that it should go on video cassettes as well as on audio cassettes, and on video cassettes I should have thought they could stand £1 quite easily. There are some people who think that the matter ought to be on a percentage basis. I rather think that that might make it a little too complex, but either of these things ought to be examined.
Having joined in the general feeling that the Government must be urged to take this matter more seriously, to recognise its urgency and introduce legislation to give effect to it quite quickly, I would also like to say something about two other aspects of this complex subject. There are in fact 18 chapters in the Government's Green Paper, Reform of the Law Relating to Copyright, Designs, and Performers' Protection. Each of these 18 chapters refers to a specific aspect of this difficult issue. I want to refer to three of those chapters. I have already dealt with the question of recording of home taping and what needs to be done about that.
I want this time to say something in praise of the Government and that is to congratulate them on their intention, which they announce in their section on performers' rights, to give performers a civil remedy. The Performers Protection Acts of 1958 and 1972, as the Green Paper makes clear, make it a criminal offence punishable by fine or imprisonment to record or film a public and unauthorised live performance. This is something which is already an offence. What the Government do in this decision is to agree with Whitford that this ought to be not only a criminal offence but ought to be available for civil remedy. It does mean, therefore, that if this legislation is introduced, and I hope it will be done quickly, the performer will have the right to sue to recover damages in the event that his performance has been stolen and publicly broadcast. I hope the Government will introduce a Bill which will not only do what they say they are going to do in this chapter but also do what at the moment they are not convinced about. I hope this debate will have helped to convince them on the question of home taping as well.
Finally, I would follow the noble Earl, Lord Gosford, in saying one word about droit de suite. I am afraid we must disappoint noble Lords; this has nothing to do with droit de seigneur. This refers to the right of an artist to follow his work through and to gain a benefit from the resale of his work. It is in the nature of things that a visual artist sometimes sells his work, in the early stages of his career, extremely cheaply. It then passes from hand to hand and can become extremely 1443 valuable. The artist at the moment gains nothing whatever, but the right which is proposed here, to give the artist a percentage in the further sale of his work, is one which is already in practice in some places; for example, it is being carried out in California, I think other states are contemplating it, and it is already the case elsewhere. The Government's suggestion is that this is something too difficult to contemplate. I would suggest that they do examine what is being done in other countries and possibly come back to us with further thoughts on that. There are six countries in the European Community—Belgium, Denmark, France, Italy, Germany and Luxembourg—whose legal provisions I think it would be worth the Government looking at.
I shall not go along with my noble friend Lord Willis who felt that the Government were to be wholly castigated. They at least have produced something. They have produced it far too late and they have produced far too little, but they have at least announced the intention of introducing legislation. What we want from them now is to see, as a result of this debate, or following from it, some more comprehensive legislation. We want to see that legislation as quickly as possible, and we want to see it embracing not only those things that they say that they are already convinced about, but also those things which we hope the debate this afternoon will have had the effect of convincing them about.
§ 6.51 p.m.
§ Lord Lyell
My Lords, the Government's Green Paper on copyright, designs and performers' protection which, as your Lordships I am sure are all aware, was published last July, invited a lively, vigorous and, to my mind, fascinating public debate on all aspects of copyright. For that reason alone I, with I am sure the whole House, am very grateful to the noble Lord, Lord Lloyd, of Hampstead, for affording your Lordships the very welcome opportunity of discussing some—and I would say only some—of the very important issues which are currently under review in both copyright and related areas. We are all grateful, too, to the other noble Lords who have contributed to this most interesting and valuable debate. The Government will pay very close heed to all the views that have been expressed and we shall take those views fully into account in the deliberations that assuredly will follow the completion of the present consultative phase.
I should like to begin by referring to the noble Lord, Lord Willis. The noble Lord criticised the fact that the Green Paper appeared, having regard to the earlier publication of the Whitford Report. But I am sure that, as he and all your Lordships will notice, the Green Paper explains in the introduction that the Committee was, of all things, not unanimous on a number of very important issues. Subsequent consultations have also shown that it had a very mixed reception. In those circumstances, the Government thought it right to formulate their own views, and to present them in a Green Paper. Having said that, I should emphasise that the Government's views on the reforms that are needed in the various fields of copyright have not yet been finalised and, indeed, will not be finalised 1444 until after the process of consultation has been entirely completed.
The many proposals for revision of the present law which are set out in the Green Paper—and the specific points to which I shall shortly be referring—must therefore be viewed in this particular light. They do not represent the final views of the Government on any of the issues which have been raised this evening; indeed, in some areas the Green Paper does not express a single view, but puts up alternative proposals for public discussion and for public consideration.
Since very shortly after the Green Paper was published, comments on its proposals have been flowing into the Department of Trade from interested organisations and individuals. At the latest count over 120 direct responses have been received, and they are still arriving in substantial numbers. Some important bodies representing both creators and users of copyright material have already replied, but many others whose responses will be of equal significance have not yet done so. In view of the complexity and, indeed, the far-reaching nature of this subject, we cannot wonder that it takes a considerable time for all of these bodies to put together their comments, despite their specialist interest in, and knowledge of, the subject of copyright.
There is one other major factor which is affecting progress on copyright reform. The Commission of the Euroean Communities has for some considerable time been looking at the entire question of the need to harmonise the copyright laws of the member states of the Community, especially in view of the provisions of the Treaty of Rome on the free movement of goods within the Community. The Commission is at present working towards the production later this year of a memorandum which will examine the interaction of copyright with the Treaty of Rome and is expected to contain or lead to some specific proposals. The publication of this document will, of course, be followed by a further period of consultation with the Governments of member countries, and Her Majesty's Government will obviously take a very active part in these consultations. The feedback that has been received since publication of our own Green Paper will greatly strengthen the Government's understanding of the issues and of the many interests entailed during these negotiations within the Community, and will ensure that the British voice is very clearly heard in the process leading towards harmonisation.
The Government will naturally wish to enter into negotiations in the Community in the full knowledge of what United Kingdom interests require of Community copyright. To that end, I must now announce that the Government would like all direct responses to the Green Paper to reach the Department of Trade by the end of August this year. This should allow adequate and, we hope, fully sufficient time for those individuals and organisations who have not yet finalised or submitted their comments to do so. The Government recognise and share the concern which has been felt in your Lordships' House, as well as outside—as we have heard this evening—and most of all in the film and video industry at the growth of commercial piracy in this relatively new area. The Green Paper reflects this in that it contains a number of proposals to strengthen the position of copyright owners against piracy.
1445 I hope that your Lordships will allow me, first, to summarise the existing remedies which are available to copyright owners. Under the 1956 Act, there are both civil and criminal remedies available. The civil remedies which are available under Sections 17 and 18 of that Act provide for relief such as injunction, delivery up and damages. They are very frequently used in conjunction with what we technically call Anton Piller orders, which are granted on ex parte application and empower the plaintiff to enter a defendant's premises for the purposes of inspection or removal of documents and articles which are alleged to contain evidence of, for example, infringement of copyright.
These remedies are now used to very good effect by copyright owners against the piracy of commercial copyright. This is particularly true in the field of sound recordings where they have enabled copyright owners to restrict the proportion of pirate material on the United Kingdom market to a very low figure—I understand, under 5 per cent. of the total. My noble friend Lord Colwyn mentioned 3 per cent. So we can see that these measures are, indeed, effective in that particular area. The figure of between 3 per cent. and 5 per cent. is well below that which occurs in almost every other country in the world. These existing remedies are available to copyright owners in all fields of copyright. To use them effectively, as in the record industry, requires careful organisation and, I would add, energetic operation. But this can be done, and we believe should be done, on an industry-wide basis.
At the same time, the Government recognise that there are areas where these already effective remedies can be strengthened and improved. The Green Paper makes a number of proposals in this direction. Perhaps I could mention the most significant of them. Already there is a provision whereby, in certain limited circumstances, the court can award exemplary and penal damages in cases of flagrant infringement. The Green Paper proposes that the scope of the courts to award such damages should be extended. It is proposed that possession by way of trade of an infringing copy, for example, of a video or sound recording, in the knowledge that it infringes copyright, should become an infringing act, and also that this should be added to the category of acts that make the person concerned liable to criminal proceedings under Section 21 of the Act.
The Green Paper also proposes that the fines applicable under Section 21 should be increased to make them more effective as deterrents. There are several other proposals, including one that the import restrictions that at present allow a copyright owner in a book to have importation of infringing copies banned, should be extended to cover infringing copies of records and films, including, of course, video. So it is entirely clear that the Government are concerned to reduce copyright piracy as far as is possible. We have made proposals to reinforce the already powerful weapons available to copyright owners.
I hope your Lordships will now allow me to move on to consider the very valuable and, indeed, constructive contributions that all of your Lordships have made to the debate this evening. The first major subject which was raised was that of photocopying. This has several facets. I am afraid we chose a rather odd word—I think that it is called "reprography"— 1446 but photocopying is a fairly clear English substitute for that. Your Lordships will note that in the Green Paper it can be seen that the Government agree with Whitford that perhaps the most practical way of controlling the photocopying of copyright works is by some form of blanket licensing, but they see no need to make this statutory. The current law provides a satisfactory legal framework within which blanket licensing could operate. In another field of copyright, the Performing Right Society operates a successful non-statutory licensing scheme. Furthermore, successful actions in the courts by the Music Publishers' Association suggest that copyright may not be quite so difficult to enforce in the face of photocopying as has sometimes been suggested, although in your Lordships' House this evening, I would not say entirely so.
Of course, there is the fair dealing exception. This allows individual students to make copies for private study. We believe that this is a very important one for education and research. This aspect has been brought before your Lordships with great emphasis this evening by several noble Lords. Indeed, the noble Lord, Lord Perry of Walton, to my mind made a notable contribution in this area. We believe that it should be retained. To limit it by excluding the use of photocopiers would either deny students the benefits of modern technology, which we believe to be illogical, or, indeed, increase their expenses, which we also believe to be unjustified as long as the student is not prejudicing the copyright owner's legitimate interests. But the main object of the library exceptions is simply to extend the fair dealing exceptions so that the student can get his copy from a library, and they should, therefore, be retained for the same reasons. There is nothing in either of these exceptions to prevent blanket licensing from operating in relation to copying outside the area of fair dealing.
Of course, multiple copying is an abuse of the existing statutory exceptions and damages copyright owners' interests. The Government therefore propose a significant strengthening of the copyright owners' position by introducing tighter controls on the related production of multiple copies of the same materials in libraries. In addition, we propose limiting the exceptions allowing copying for research and private study so as to exclude commercial research. It is not equitable that a commercial organisation should be allowed free copying of an author's work for the purpose of its own profit, and this exclusion should facilitate the operation of blanket licensing within commercial organisations. The definition of "commercial" copying will, of course, need careful consideration.
The second and I believe equally important subject, which I think was covered by every noble Lord this evening, concerned what we call recording or home taping, be it audio or visual, depending on whatever one wants to do. I seem to be unique in your Lordships' House in that I have not yet acquired the necessary technical expertise to attempt to copy even with a fairly simple cassette recorder. Any of my efforts have damaged tape, recorder and, indeed, once required the services of an electrician. So I claim no interest in this particular area. It is also equally clear that your Lordships have great technical expertise in this area.
1447 The Government have not received convincing evidence that it would be right to introduce a levy either on recording equipment or, indeed, on blank tapes. As your Lordships will have seen and, indeed, as has been explained and discussed this evening, the Green Paper sets out the relevant facts as far as they were known last year, in July 1981. But part of the difficulty is knowing the size of the problem. There has been talk of hugh losses of anything up to £1 million per day to the record industry as a result of in-home taping; but the figures quoted in the Green Paper suggest something a great deal less than this, even if allowance is made for updating. The exact losses seem, in fact, to be virtually unquantifiable.
§ Lord Willis
My Lords, if I may interrupt the noble Lord, does the size of the problem really matter? Is it not a question of principle? If something is being stolen, do not you stop it being stolen, whether it is £1 or £l million?
§ Lord Lyell
My Lords, if the noble Lord will be patient, I shall come to that in a paragraph or two, when I hope to cover his particular point. To charge a levy which would be sufficient even to raise the Green Paper figure of £50 million per year—and I would stress that that figure does not represent a Government estimate of actual losses, but is merely a reworking and modification of earlier figures provided by the record industry—would require a very large percentage increase in the price of tapes, and the Government would be reluctant to impose this upon the public, especially since imposition of a levy would involve what we would regard as rough justice, with many tape users who never record copyright music having to pay; these could include, for example, organisations for the blind, and would also probably cover and catch the educational use, which has been referred to widely in your Lordships' House tonight.
Since publication of the Green Paper, strong opposition to such a levy has continued to be voiced by the users. Any rebate scheme to compensate the users would be cumbersome and, indeed, it would be very expensive to operate. Furthermore, a levy on blank tapes could be circumvented by selling tapes with trivia recorded on them or by obtaining by mail order from abroad. We believe that this is a very powerful argument. As many copyright owners and, indeed, record companies are foreign or foreign-owned we believe that a substantial part of the levy would go abroad, with little compensatory inflow.
Since publication of the Green Paper, the suggestion has been put to the record industry by the Government Minister then responsible that the industry should cease to focus all its hopes on a levy and should instead closely re-examine the possibility of devising a comprehensive and realistically priced and, perhaps most importantly, vigorously publicised voluntary licensing scheme for private taping. The fact that the now defunct amateur recording licence did not raise adequate income need not mean that it is impossible to devise an adequate replacement.
I should like now to turn swiftly to video recording. As your Lordships will have heard, there is new and, indeed, even newer technology appearing day by day 1448 and week by week. Indeed, the Green Paper considered that there was no clear evidence that video taping in the home harms the interests of the video industry, and concluded that it was difficult to see any real case for a levy in the video field. But as on all aspects of copyright, the Government have not yet finalised their view on this issue of video taping, which they appreciate was in its infancy when the Green Paper was published last year but has since burgeoned considerably.
There was further comment from your Lordships on the problems of who in fact owned the copyright. The Green Paper—indeed, it is the Government's view—says that we recognise, as indeed Whitford did, that it is natural for copyright to vest in the author unless he has entered into an agreement to the contrary. We believe that the question of ownership should, wherever possible, be settled by contract, and we agree with Whitford that the law should contain provisions concerning employees and commissioners for use only in the event of the parties failing to reach an agreement. The concern of the Government is to establish a fair balance consistent with modern day conditions, and the Green Paper invited public comment on some specific suggestions. Indeed, there have been a number of responses on this question so far.
The noble Earl, Lord Gosford, raised the dual queries of moral rights, and indeed he went on with artists' resale rights, which I think he called droit de suite. May I deal first with what he called moral rights. The noble Earl brought this question up, and I think he will see that reference to "reasonable modification" comes from the Green Paper at page 59, paragraph 6. It means that changes should be allowed, if we take one example, when a work is being adapted for the screen. The paragraph goes on to elaborate by saying that reasonable changes are those to which the author could not in good faith refuse consent. I hope that covers the noble Earl's query so far as moral rights are concerned.
So far as the droit de suite is concerned, we would agree in this instance with Whitford that the artists' resale rights should not be introduced into this country because we believe it is not necessarily fair or logical. Indeed, experience abroad suggests that it is not entirely practical either from the point of view of administration—and we believe that sales are driven underground to avoid payment of the royalties—or as a source of income for artists since collection tends to be cumbersome and expensive. Furthermore, it is not entirely clear that the majority of British artists would benefit. The handful of well-known artists whose works commonly appear for resale would be very much enriched, but sales of works of the less well-known artists might be discouraged by the prospect of what we see as a tax on resale.
The Earl of Gosford
My Lords, would the noble Lord give way? I am pleased, as I am sure the House is, to learn that August is now the date set. On the point of moral rights, the noble Lord quoted from the Green Paper, which I have also read. That needs more clarification. If these things come into courts of law artists are going to need certain kinds of protection. I am thinking also in the censorship field and fields where artists' works are cut up and sold in 1449 small lots, as happened to our great friend Rembrandt at one time.
On the question of droit de suite I think that the noble Lord should look into the question that the noble Lord, Lord Jenkins, raised.
§ Lord Sandys
My Lords, I think that the noble Earl ought to phrase his remarks in the form of a question so that my noble friend can reply.
The Earl of Gosford
I am most grateful, my Lords. On the question of droit de suite, may I draw the noble Lord's attention to the suggestion made by the noble Lord, Lord Jenkins, and research into how the other countries collect artists' resale rights? It really is quite a simple matter.
§ Lord Lyell
Indeed, my Lords, I shall take careful note of this particular suggestion raised by the noble Lord, Lord Jenkins. I am grateful to the noble Earl for correcting me if I have misinterpreted anything so far. I take note of his preliminary sortie on the deadline for comments coming into the department.
The House will recall that I have already stressed that the proposals enshrined in the Green Paper do not in any way represent the Government's final views on the future shape of copyright law in this country. These views are not formulated. Indeed, we want to await the completion of the consultative process for which the Government have now set the deadline for the receipt of comments, and that is August of this year. New legislation will also depend on the position within the European Community, but I assure your Lordships that every effort will be made to expedite matters once these developments in both cases have taken place.
§ Lord Jenkins of Putney
My Lords, before the noble Lord sits down, may I ask him for an assurance on one point—on the question of home taping, as it is called, both audio and visual? It is inevitable, in the circumstances of the case, that what he said to some extent was prior to the debate. Will he be able to give us an assurance that, having heard the debate, he will take back his to noble friends what was said, and will take full account of what has been said on all sides on this subject?
§ 7.16 p.m.
§ Lord Lloyd of Hampstead
My Lords, the hour is late. I understand that there is another subject for debate to follow. I certainly do not wish to detain your Lordships for more than a moment or two. However, I do not think I can refrain from thanking all noble Lords who have been good enough to participate in this debate, and to say that certainly in my view their contributions have been most valuable and have made this a most stimulating and excellent debate.
I am bound to say that I shall leave the Chamber with a certain sense of disappointment at the reaction of the Government. I did not detect in the reply that we received from the Minister any great sense of urgency. The mention of the date of the end of August for the receipt of final comments is perhaps slightly better than the Greek kalends, but nevertheless it is a 1450 remote date and it is merely to be the time when the documents are to be submitted. How long the subsequent deliberations will take, we do not know.
Dr. Johnson once remarked that if a man knows that he is going to be hanged in a fortnight, it concentrates his mind wonderfully. I am not suggesting that this is a fate which is impending in relation to the Government, but one would have hoped that by now there would be rather more concentration of mind. However, if this debate has served to create some concentration of mind and I think one can derive some little consolation from the indication by the noble Lord, Lord Lyell, that the Government have not totally made up their mind yet on some of these controversial questions—I would suggest that the debate may yet be shown to have served some useful purpose. My Lords, I beg leave to withdraw my Motion for Papers.
§ Motion for Papers, by leave, withdrawn.