§ 7.3 p.m.
§ Lord Fraser of Carmyllie rose to move, That the draft regulations laid before the House on 20th November be approved [2nd Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, these regulations amend the Copyright, Designs and Patents Act 1988 in order to implement all of the main provisions of a Council directive (93/98/EEC) harmonising the term of protection of copyright and related rights in the European Union. This became due for implementation on 1st July this year, and we very much regret that the complexities of the regulations have meant that we have been unable to complete their preparation in time to meet that date. Indeed, work still remains on legislation to implement Article 4 of the directive, which requires introduction of a new form of protection for unpublished works in which copyright has expired. That article is not, therefore, covered by the present regulations. We intend, however, to deal with that remaining aspect as soon as possible.
§ The 1988 Act already complies with one of the main requirements of the directive—a 50-year period of protection for copyright in sound recordings and broadcasts and for the rights of performing artists. In bringing the duration of those rights to the same level in the rest of the EU as in the UK, the directive should 1468 be of significant benefit, particularly to the UK sound recording industry. The area is of considerable economic importance to the UK, and where up to now terms of protection have been much shorter in several other member states, including Germany.
§ The directive does, however, mean that the 1988 Act has to be amended to increase the basic term of copyright in literary, dramatic, musical and artistic works. This will rise from the present Life of the author and 50 years after death, to life plus 70 years. Although this term previously applied only in one member state, Germany, two others also had terms longer than the UK—Spain with life plus 60, and France with life plus 70 in the case of musical works. Harmonisation at life plus 50 would therefore have been difficult since it would have meant reductions in protection in three member states. Moreover, the directive was subject to qualified majority voting, and it became clear that most other member states were willing to accept harmonisation at life plus 70. In those circumstances, therefore, the UK agreed, reluctantly, to accept the increased term. It follows, however, that there will also be increases in most other member states, and UK authors, composers and artists should benefit from this at least as much as those from other EU countries.
§ The directive also means that the duration of copyright in films, at present 50 years from making or release, is changed by the regulations and is put on a similar footing to the term for literary and like works. Copyright in films will now last for 70 years from the death of the last to die of the principal director, the authors of the screenplay and dialogue, and the composer of any music specifically for the film. The underlying reason for the change in approach is that several other member states already protect films on a 'life plus' basis rather than for a fixed period.
§ I should also explain that the directive requires the increased copyright terms it sets to apply not only to future works but also to existing ones. This means that the copyright of works currently in protection in the UK will be extended. Revival of copyright will also occur in the case of works which, although in the public domain in the UK, are still protected elsewhere in the EU. However, the terms set by the directive essentially apply only to works from the EU. Those from outside the EU will receive the term granted in the country of origin, which in most cases will be less than the EU term.
§ A number of the regulations concern transitional provisions in relation to extended and revived copyrights. The Government are well aware of the difficulties which revival could cause. But without this approach there would be no effective harmonisation for a considerable period, and UK sound recordings and performances would suffer from remaining out of protection in several other member states.
§ Moreover, we have tried to do as much as possible to ensure that there are adequate safeguards to protect users who would otherwise be adversely affected by revival of copyright. Clearly, it would be wrong if anything done before the regulations come into force and copyrights revive were retrospectively to constitute an 1469 infringement of the revived rights, and this will not be the case. But, necessarily, the safeguards go much further than this; for example, where arrangements for exploitation of a work in which copyright will revive have been made prior to 1st January 1995, nothing done in pursuance of those arrangements after the regulations come into force will infringe the revived rights. That means, for example, that if a publisher has entered into commitments to produce an edition of an affected work before the date I have indicated, he will be able to fulfil his commitments without incurring any liability to copyright owners.
§ We have also had to establish who is to own extended or revived rights. That is not dealt with by the directive but is a matter which has to be resolved since otherwise it would be unclear who is entitled to authorise particular acts or benefit from them, with the result that future use of works could be inhibited. On that aspect we have tried to take an approach which is both fair and produces the greatest legal certainty. In essence, we have concluded that those objectives are best met by providing that the current owner of copyright will own the rights extended by the regulations and that the last owner of the original copyright will own revived rights.
§ The House will realise from this introduction that the directive raises difficult questions of balance between competing interests. I am confident, however, that the solutions we have arrived at are fair and workable.
§ Finally, there is one matter upon which I should comment. It is the date upon which the regulations are due to come into force; namely, 1st January 1996. I am aware that there is concern among interested parties as to whether that means that copyrights due to expire on 31st December this year are extended as opposed to being revived. I should like to take the opportunity to assure your Lordships that the effect of the regulations is that those copyrights will continue in force and will be extended. I beg to move.
§ Moved, That the draft regulations laid before the House on 20th November be approved [2nd Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
§ 7.12 p.m.
§ Lord Brain
My Lords, in giving the statutory instrument a guarded welcome, I must declare a number of interests. I am treasurer of the British Copyright Council, and chairman of the British Photographers Liaison Committee, both of which bodies have consulted the intellectual property section of the DTI and actively made representations to the European Commission. It is possible also that my family may benefit in due course from the extension of copyright provided by the statutory instrument. So I declare those interests.
I congratulate the Minister on his explanation of this SI, which is longer than many Bills, and I accept fully the point that he has just made, that copyright which people feel expires at the last minute of this year is, because of the way the SI is worded, in copyright at that moment, immediately before the SI comes into force. That is acceptable. It is genuinely extended copyright.
1470 The Minister has admitted that there are parts of the appropriate directive which have yet to be dealt with. I may come to that in a minute. He has said also, with regret—I accept that—that it should have been brought into force by 1st July. I would just draw attention to the fact that members of the British Copyright Council saw the Minister on 2nd November 1994 to discuss implementation of the directive. I have a slight feeling that, rather than dealing with an SI, an elephant was being conceived in those days, and that the calf has been born in a bit of a rush. When it all arrived, we were given less than three weeks to deal with all the final complications of the last draft. Even then, when it was first placed before the House it took me two days to obtain a copy of the instrument. It was considered by a joint committee. I have been awaiting the report of that joint committee. I managed to pick one up this morning in the Printed Paper Office. We have already had comments about delays of that sort in the House today. I would just add that to the list of problems.
I shall talk about the problems of photographers in particular. Those who have heard what the Minister said will realise that the photographs which were taken in 1945, which was a great year for this country, would have fallen out of copyright on 31st December. That copyright is now extended, but those photographs were taken under the Copyright Act 1911, which was then extended by the Copyright Act 1956, which was then further extended by the Copyright, Designs and Patents Act 1988, Schedule 1, paragraph 11(2)(a).
So the person who commissioned the photograph owns the copyright on 31st December this year, and therefore, quite correctly, it goes on from 1st January as his property, if he still exists. I shall come to whether or not his existence is important in a moment. Looking at the extension for things like films, because the people who were granted the extension of copyright were receiving copyright extended in a somewhat peculiar way and the directive granted them and others more protection, it is clear in the SI when the extended copyright expires.
I have looked through with great care, and because in most cases the extension of copyright of artistic works is now the author's death plus 70 years, I have been unable to find the date of expiry of extended photographic copyright. I may not have used a sufficiently good magnifying glass. I am happy to be told by the Minister when he replies that I have made a mistake. Regulation 18 of the SI, which deals with the extension of the copyright, is fine when one is considering the extension of copyright of an author or the extension of copyright in a film, but, because copyright was held by the commissioner, it does not apply so easily to photography, especially if the copyright was held by a limited company which has been taken over innumerable times, and such things.
Regulation 19, however, which deals with revived copyright, conveniently deals with those points. It is a great pity that Regulation 18 does not contain a somewhat similar provision for photographs. If I have made a valid point on either of those two matters, I hope that, when the Minister replies, because he has already said that there are matters outstanding on the directive 1471 to be dealt with later, he may find a way of covering in a future SI the point I have raised. I leave that, and welcome what he says.
I have one other query on the SI. Under what section of the directive do the Government have power to implement the reasonable royalty provision under Regulation 24(1)? I ask that question especially, because I have received an indication that that type of royalty may be in contravention of the Berne Convention.
Finally, will the Government give an indication of the date on which the next statutory instrument relating to duration and the statutory instruments on rental and lending and the cable and satellite directives are likely to be laid before the House and, it is to be hoped, given an unhurried implementation, bearing in mind that the latter two instruments are some 18 months late?
§ 7.20 p.m.
§ The Earl of Kinnoull
My Lords, unlike the noble Lord, Lord Brain, I have nothing to declare in respect of copyright law. Indeed, I have been struggling to understand the few words of the regulations. I wish first to congratulate my noble and learned friend on introducing the regulations in his usual skilful way and on making a complicated matter look simple.
In general, one applauds the harmonisation of copyright as set out in the 1993 directive and the benefits that will flow to British authors and publishers from 1st January 1996. I expect that all noble Lords have spoken on behalf of one particular factor but my intervention follows a discussion that I had with members of the Composers' Estates Group. The group represents approximately 15 estates of some of the most famous British composers; for example, Elgar, Delius, Ho1st, Britten, Walton and Vaughan Williams, to name just a few.
Many of the estates were formed as charitable trusts on the death of the composer. Today the trust income provides a welcome benefit to future generations of struggling composers, the training of youth orchestras and even the funding of the Aldbury Theatre in Suffolk. One would think that such heirs of great composers would significantly benefit, together with authors and publishers. That was the obvious intention of the 1993 directive which stated:'Their protection ensures the maintenance and development of creativity in the interests of authors/composers, cultural institutions, consumers and society as a whole'.One could find nothing more positive than that. Yet, despite these fine objectives, the heirs and estates of composers are unlikely, as I understand it, to benefit very much from harmonisation due to the drafting of the regulations before us.
The main concern of the group is its future interests in the ownership of the extended and revived copyrights. In the case of the extended copyright, its ownership interests under the regulations appears to be limited to the terms of the original agreement. That may have been written more than 50 years ago and have little bearing on today's conditions. I suggest that such a restriction becomes unworkable.
1472 It is interesting to note that musical rights fall broadly into three categories; the performing rights, the mechanical rights and the publishing rights. Surely a fairer formula of benefit could be devised. A similar unfairness appears to arise under the regulations as regards revived copyright. Here the benefit goes to the immediate owner before the copyright expired. That may seem reasonable for authors who traditionally hang on to their copyright ownership. However, as regards composers it is known that traditionally the publisher owns their copyright.
Thus, because of market conditions, the composers' heirs and estates are unlikely ever to be able to benefit from the windfall designed for them under the directive. Why cannot some equitable remuneration be introduced in the regulations in view of those well-known traditional practices?
I turn to the exploitation of revived works. Here the regulations seem to depart somewhat from the directive. First, the dates differ and the directive is more simple to understand. Secondly, when judging whether a person is due to pay or not pay a royalty for revived works the directive uses the expression 'in good faith' but the regulations use the expression 'in pursuance of arrangements'. My legal friends tell me that the phrase 'in pursuance of arrangements' is baffling and has no precise legal definition. To substitute 'arrangement' for 'agreement' would be understood. I hope that my noble friend will give an assurance that that will not lead to wasteful litigation. Furthermore, it appears that there is no mechanism for the exploiter to have to declare his arrangements, which is a minus factor for the states attempting to protect their interests.
My final question relates to compulsory licences, which I understand first arose in copyright legislation back in 1911. I am advised that in 1988 the Government abolished the compulsory licences as being incompatible with the Berne Convention and likely to cause problems with the export of records to member states. Why are the Government introducing such a provision and re-opening these old worries?
I return to where I began. The 1993 directive is to be welcomed for the intellectual property of our country and for the windfall benefits that will accrue. However, I am unhappy that part of that intellectual property—our famous composers and their heirs—should be unfairly handicapped by the regulations. After all, without composers the music world would be a sterile place.
I hope that tonight my noble and learned friend can offer some assurances and clarifications about how a group such as the Composers' Estates Group, which does such immense good, will not be penalised by any inept drafting of the regulations and that if their case is proved some modifications can be made in future regulations.
§ 7.26 p.m.
§ Lord Monson
My Lords, will the noble and learned Lord say whether, as has been widely reported, Germany in effect bullied other EU countries, which initially were extremely reluctant, into agreeing to extend the period of literary copyright by 20 years? 1473 Secondly, will he give an estimate of how much this regrettable step, as he himself explicitly agreed, will increase the price of low-priced reprints of popular classics, which have been such a welcome feature of our publishing scene during the past five years or so?
§ 7.27 p.m.
§ Baroness Hamwee
My Lords, I too must start by declaring an interest. I am a solicitor and a partner in a firm of solicitors many of whose clients are authors and owners of copyright material, performing artists and licensees of such material.
My first question is a general one relating to the form in which the regulations are introduced. I understand that the directive could have been implemented by primary legislation rather than by statutory instrument. Given the anxieties that have been expressed tonight, which reflect discussions and debates on some difficult matters, will the Minister explain to the House why the Government decided to go ahead with regulations in this form, because the statutory instrument is not capable of amendment? Had we been dealing with a Bill, it would have been possible to discuss the anxieties in the shape of amendments and possibly to have implemented some amendments.
Noble Lords who have already spoken have covered the major points and I apologise for repeating some of them. First, perhaps I may ask the Minister about matters in the directive which have not been implemented. He has already mentioned Article 4, so I shall not ask about that. But I understand that Article 2(1) provides for authorship of cinematographic or audio-visual work, the author to be the principal director of that work. The regulations do not amend the 1988 Act to provide for authorship of those works.
Secondly, Article 3(3) requires that the producer of the first affixation of a film shall enjoy rights for a period of 50 years. Again, the regulations do not deal with that. In parenthesis, I apologise to the Minister for not giving him notice of these questions. I was not aware of the questions until shortly before the debate.
The issue of what in effect will happen in practice in the extra 20 years has been dealt with by the noble Earl, Lord Kinnoull. He referred to old-fashioned forms of publishing agreements. Over a number of years of practice, I have seen agreements which, to modern eyes, seem extraordinarily outdated and unfair to the composers and authors. Royalty levels may be very low or, indeed, there may be no royalties at all. The agreements may not be so outrageous that they may be challenged as being unenforceable or, indeed, they may be open to challenge but there is neither the wherewithal nor the will to do so. But certainly, they are often quite unsatisfactory. They inevitably fail to deal with technological progress. The possibility of exploitation using modern technology was not even a twinkle in anybody's eye when many of the agreements were written. I share the noble Earl's anxieties about the continuation of such terms for another 20 years.
1474 The noble Earl has also talked about anxieties as to the extent of what is permitted when revived works are exploited. In referring to arrangements undertaken in good faith, the Minister used the word 'commitments'. Perhaps he will expand a little on that.
In the real world, a publisher may have decided in December of last year to bring out an edition of a work which was then in the public domain. Being sensible, he would have decided to print copies to meet demand. After all, publishers do not wish to hold excessive stocks. The copyright then revives. Will the publisher continue to print and market that edition indefinitely on the basis that it was an arrangement made within the regulations? I should be grateful to the Minister if he could help your Lordships and those in the industry who are concerned as to where the lines are to be drawn.
The question of compulsory licences has also been raised. I share the concerns that have been expressed. The directive dealt with exclusive rights and protection of exclusive rights. Having the benefit of a licence which one is compelled to grant is not the same as being in control. The blanket licences are not, to my mind, the same as the control and protection which was anticipated by the directive.
The Berne Convention has been mentioned by the noble Lord, Lord Brain. I have been advised that there may be also a question of ultra vires in connection with the European Communities Act. Section 2(2) of the European Communities Act 1972 empowers the Minister to make certain provisions but there is no obligation on the United Kingdom under the directive to establish a right to a reasonable royalty. I am advised that the right may be contrary to the obligation which the directive imposes; in other words the restoration of the exclusive right. Therefore, there is also a concern in that connection in relation to the Berne Convention.
Also in connection with compulsory licences, it is not only the income which is material—the licence charge—but other conditions which the licensor may wish to impose. The copyright tribunal has powers to fix the reasonable licence fee if the parties cannot reach agreement but that is the extent of the tribunal's powers. In the minds of the parties there are no doubt other details as to the extent of use which are important but which are not catered for if the parties cannot reach agreement.
§ 7.36 p.m.
§ Lord Peston
My Lords, I join other noble Lords in thanking the Minister for introducing the regulations. When I was preparing my notes, I did not realise, although it is now clear to me, that as I am the author of several books I must declare an interest. I can only add that I hear from my publishers once a year when they say, 'Your total royalties earned this year are less 1475 than the minimum we pay and we accumulate them for subsequent years.' Thai. is accumulating very slowly. Therefore, I do not have much of an interest to declare.
§ Baroness Hamwee
My Lords, the noble Lord may be aware that the embarrassment that might be caused when such interests had to be declared in detail was a concern of some Members of this House.
§ Lord Peston
My Lords, I thank the noble Baroness. I must also join with other noble Lords in a note of complaint. We are dealing with a matter of enormous importance. In particular, the restoration of copyright, with one notable and almost notorious exception, seems to me quite unique. The Minister is aware that I am grievously unhappy that we are dealing with such a significant matter in the dinner hour, late in the year. These matters deserve detailed and lengthy scrutiny.
I echo the remarks of the noble Baroness, Lady Hamwee. If this were a Bill, my guess is that it would take us a day to scrutinise it; in fact, a day merely in terms of asking the Minister to explain various matters. It is, to put it at its mildest, rather unattractive to be dealing with the matter as we are. The Minister persuaded me that it had to be done this way because of the 1st January date. I am advised that that is not the case but I must bow to the Minister's advice that we must deal with it.
I add a further complaint. We should never have been put in this position as regards a matter of this significance. I hope that it will not happen in respect of the other directives to which the noble Lord, Lord Brain, referred. I am responding moderately today but I shall not behave so well in future, in particular in relation to the rental and related rights directive, if we are not given ample time in terms of notice and availability to debate it. I say that without wishing unduly to criticise the department. In my judgment, within limits and given the difficulty of the issue, the department has done a good job. I agree with the Minister about that. But there is a difference between doing, a good job and doing a perfect or an amendable job. That was the point made by the noble Baroness, Lady Hamwee. As she rightly said, we cannot amend any of the material before us, even when some of us believe that the advice given is wrong. The Minister does not have to agree but I hope that he will take on board the point that if some of it does turn out to be wrong in the sense that it does not meet the directive, is unworkable or has other flaws, we shall come back to it in some way or another and put the matter right because that is vital.
I have two further issues to raise. First, apart from the extension of copyright being mildly unusual, it is extraordinarily generous. To add 20 years to what is a generous form of law is extraordinary. Your Lordships may compare it with another branch of intellectual property—patent law. That is at the other extreme. Many inventors find it difficult to procure any years of patent protection. Therefore, the extension we are considering is very generous.
Nevertheless I take the point, although the bullying element had not occurred to me. If we are to harmonise, it would be much easier to harmonise upwards than to ask the Germans to come down to 50 years. I should be 1476 most interested to know whether bullying was involved. I am certainly not one of those who would have gone out of his way, if we had not been asked to harmonise in that direction, to say that there was some national interest in extending copyright by a further 20 years.
The related question is: can we be assured that we have met all the points of the directive? I say that because on previous directives we were told we had but suddenly discovered that that was not the case. In particular, on the balance question, I understood the point of the directive was not merely to harmonise but also to protect the author and the next two generations of his or her family. That is the point at issue. Yet in no sense do the rights in the document revert to the author's heirs: they revert, as the Minister said, either to the current owner or to the last owner. That is quite a different matter. As the noble Baroness said, people may have sold their rights not realising that they were giving something away that was a good deal more valuable than it appeared at the time. Again, I shall be interested to know whether the Minister has been advised that there is no possibility of litigation in that respect. That is not something we would like to see arise.
I have talked about the problem of dealing with such a complex document in the manner that has been proposed today but I have to tell your Lordships that I find Regulation 23 completely incomprehensible. I have put in a good deal of work, but I do not believe that it could be comprehended by anyone. It is totally beyond me even to work out what the paragraph is trying to say, let alone what it actually says. If we were discussing a normal clause in a Bill, I would have tabled several amendments, the objective of which would be to see whether it made any sense.
I hasten to tell the Minister that I am not demanding that he makes an enormous speech telling me what Regulation 23 means—especially as I have already said that I do not believe that that can be done—but I have to say that Regulation 24 also concerns me. The Minister is entirely right to say that there is a question of balance involved. Certainly, someone—for example, a publisher—who in good faith published a work which was out of copyright should not be regarded as infringing because it has now been put back into copyright. However, I believe that Regulation 24 says that, from now on, such a publisher will have to pay royalties on the work. I am not, however, 100 per cent. certain in that respect.
I will give your Lordships a further example. A new publisher wants to publish exactly the same work which was out of copyright but is now back in it. That publisher will not treat the owners of the copyright as if the work were in copyright; as I understand it, the system under Regulation 24(1) will operate under the 'reasonable royalty' rule which is a different matter. In other words, it is rather like the point made by the noble Earl, Lord Kinnoull. The owners will not be given back what they thought they had. Therefore, I believe that we may have the balance wrong in two different ways.
I should add—and this is rather more acid—that I am sorry to see that, inevitably, the Copyright Tribunal will be brought in at that point. From my knowledge of that 1477 tribunal, I must say that I am less than impressed by it in every possible way. For example, I am not impressed with its expertise or its good judgment; and I am certainly not impressed with its ability to act with any degree of speed which I believe may be relevant. Therefore, I have to go on record as being both confused by, and unhappy with, Regulations 23 and 24 in so far as I understand anything at all.
I shall not prolong the discussion any further except to put one further question to the Minister. If he is not able to answer tonight, perhaps he will write to me on the matter. We are, of course, dealing with intellectual property and, therefore, we are dealing with an asset. When the composer or author of the case that we have in mind died, I assume that the estate was valued for probate according to the copyright vested in it at that point based on the assumption that you looked forward 50 years, and no doubt tax was paid on that. My question is: what happens now when a greater value will be created? It was never a value that was there for tax purposes for probate. My probate lawyers tell me that the matter cannot be re-opened once it has been agreed. Nonetheless—putting it at its mildest—we have a very definite tax anomaly here; namely, that someone has got some value which, in a sense, ought to have been taxed earlier but which will now never be taxed.
I do not raise a purely intellectual argument; I raise a serious example of the consequences of going down the route suggested. I reinforce my point to the Minister. I do not expect that question to be answered tonight. However, if anyone in the Minister's department is able to sort out the matter for me, I shall be more than usually obliged. Having said that, we must of course agree the regulations. I do not believe that there is any point in delaying the matter further.
§ 7.46 p.m.
§ Lord Fraser of Carmyllie
My Lords, I am most grateful to those speakers who have contributed to tonight's extraordinarily erudite debate. I compliment them on their grasp of the detail of the statutory instrument now before us. I shall attempt to respond to most of the points raised, but, if I fail to do so, I shall look at the Hansard record of the proceedings tomorrow and write to noble Lords if there are any points that I fail to answer.
I was asked in general terms whether this was an appropriate way to proceed. Yes, in the circumstances, I do believe that it was right to have resort to such a procedure. There may be a complaint that the instrument has come forward to your Lordships at rather short notice, especially as the 31st December and 1st January crossover point is extremely important. However, in an area as arcane as this, I must point out that the critical aspect of it is that there should have been widespread consultation. I believe that the noble Lord, Lord Brain, indicated that as far back as two years ago he was engaged in consultation over the matter. It is possible that we have the balance slightly wrong. However, it is not often in your Lordships' House that the complaint is made that we have consulted too much rather than too little.
1478 I was asked by the noble Lord, Lord Monson, whether Germany had bullied the United Kingdom into accepting life plus 70 years. I see that the noble Lord wishes to respond. I give way.
§ Lord Monson
My Lords, I am much obliged. I referred to the fact that Germany may have bullied other countries; in other words, all the other EU countries and not just the United Kingdom.
§ Lord Fraser of Carmyllie
My Lords, well, perhaps I should say, bullied the United Kingdom or other countries.
As I sought to indicate in my opening remarks, not only Germany but two other member states have copyright terms longer than our present one of life plus 50 years. I also sought to stress—whether or not it was a result of bullying or otherwise, I know not—that every indication was that other member states were willing to accept harmonisation at life plus 70 years. In those circumstances—and I hope that I put a sufficiently heavy emphasis upon it—we reluctantly agreed. In other respects, Germany is having to increase its term to that which already exists in the United Kingdom. As in the case of sound recordings, the directive is a compromise between the various national laws.
Both the noble Lord, Lord Brain, and the noble Baroness, Lady Hamwee, asked about the licence of right or the compulsory licence. The directive leaves considerable flexibility to determine how best to safeguard the interests of users who will be affected by the revival of copyright. In that context, it is specifically mentioned in respect of legitimate expectations. We feel that existing users and the public at large might reasonably have expected that, having once entered the public domain works would remain available for use. We consider therefore that the licence of right is permissible and strikes the fairest balance. I am grateful to the noble Lord, Lord Peston, for appreciating that there is a balance to be struck. The fairest balance to achieve was between the interests of the public and those of right owners who will still receive payment for the use of their works during the new and unexpected period of protection these will now receive. We do not consider that it is outside the powers of the European Communities Act to introduce the licence of right.
I was asked a number of extremely difficult questions about photographs. In Regulation I9(2)(b) 'author' has the meaning given to it in Section 9(1) of the 1988 Act. We intend that photographs should be treated in this regulation no differently from the case of photographs which are offered to film directors. I am aware of the detail of this matter as regards the 1911 and the 1956 Act. However, as I understand the way the regulation is drafted, the defect that has been hinted at is not there. We are certainly not aware of any deficiency. The term of copyright in the case of photographs will be the life of the author plus 70 years unless the transitional provisions of the 1988 Act produce a term which is longer than that, in which case that will continue to apply.
1479 My noble friend Lord Kinnoull asked a number of questions about the ownership and the balance between extended and revived rights. We recognise that there is an argument that extended or revived rights should belong to the author or to his successors. I shall certainly not engage now in a discussion about what enters into revived or new probate. However, we certainly understand that argument. But where copyright has been sold outright by an author or his successors no further benefit can have been expected and it is appropriate, in our view, that the present or last owner of the copyright, as the case may be, should be entitled to the rights. Again, we are trying to strike a balance. What is important is that this approach also offers the greatest legal certainty as regards ownership. In a broader way that is extremely important, for without that the future use and availability of works could be inhibited as it would be unclear who is entitled to authorise or benefit from the particular acts of exploitation.
My noble friend and the noble Baroness, Lady Hamwee, asked me about the term 'in pursuance of arrangements which were made before 1st January 1995'. I believe there has been some suggestion that that phrase has not appeared previously, but it appears in the 1988 Act. There are a wide variety of circumstances which can occur in practice and the wording of the legislation has of necessity to be fairly general. We do not think it possible to define the kinds of acts which will be permitted more precisely. Where dispute occurs it will be for the courts to determine whether or not this has been done genuinely in pursuance of arrangements made before the specified date.
I was asked whether I anticipated legislation. I am bound to say as a lawyer that I think it would be quite extraordinary if this important but complicated matter at some point did not give rise to regulation. We have certainly done what we can to ensure that, so far as possible, difficulties which might have arisen have been ironed out. The noble Baroness, Lady Hamwee, also asked about Article 2(1) which states that the principal director should be regarded as the author of the film. However, the article also provides for the implementation of this provision to be deferred up to 1st July 1997. We intend to introduce the change when the so-called 'rental directive' is implemented. I was asked to give a precise indication of when that would be. I can say no more than that we hope that will be in the near future.
I conclude by saying that we believe these regulations comply fully with the directive. I hope, notwithstanding the time that has been available to discuss this matter, that I have been able to answer most of the questions that have been asked. This is certainly an extremely complicated statutory instrument but I hope that the long time that has been taken up in consultation has ensured that in the main it has achieved the objectives of the directive other than in those respects where I have already indicated it will be necessary to return to regulation.
§ Baroness Hamwee
My Lords, before the noble and learned Lord sits down, I hope he will answer 1480 this point. I apologise to the House for prolonging this matter. The noble and learned Lord referred to the term 'arrangements' by analogy with their use in the 1988 Act. I do not expect an answer just now but I hope that the noble and learned Lord will write to me on this point. I am certainly aware of the use of the term 'arrangements' in making arrangements for a film that determines the copyright ownership of a film. No doubt the term is used elsewhere. I hope that the noble and learned Lord can write to me on the detail of the analogy.
§ Lord Fraser of Carmyllie
My Lords, I am certainly prepared to do that. I believe the phrase occurs in more than one context in the 1988 Act. Rather than prolong the debate at this moment I shall certainly write to the noble Baroness.
§ On Question, Motion agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.55 to 8.5 p.m.]