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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 19(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.

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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

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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.

Lord Chesham: My Lords, I beg to move that the House do now adjourn until five past eight.

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

[The Sitting was suspended from 7.56 to 8.5 p.m.]

Criminal Procedure and Investigations Bill [H.L.]

House again in Committee.

Clause 7 [Secondary disclosure by prosecutor]:

Lord McIntosh of Haringey moved Amendment No. 31:

Page 5, line 33, at end insert ("and which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue").

The noble Lord said: In moving Amendment No. 31 I shall speak also to Amendments Nos. 36 and 44. These amendments are inextricably linked to the amendments that we have already dealt with relating to primary prosecution disclosure and defence disclosure. We now move on to the issue of secondary prosecution disclosure in Clause 7.

The problem with Clause 7 is that it is very narrowly drafted. It creates only two gateways for disclosure of material to the defence. One is, as we have seen, material which the prosecution considers undermines its case. The second is material which the prosecution considers may assist the defence case as disclosed in the initial statement of defence. Those are the two criteria for primary and secondary disclosure. They are the only bases on which the court can order disclosure of unused material which the defence requests to see.

The problems with those criteria are, first, there may be material which is relevant but which the prosecution, in all good faith, does not realise could be of assistance to the defence although the defence recognises that it is of assistance; and, secondly, if there is a change in the

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defence case--and there is some provision for a change in the defence case--there is no obligation on the prosecution to disclose information which is relevant to the new defence case. More seriously, the court cannot order its disclosure, even if it recognises that the change in the defence case is reasonable and should not be commented on adversely.

Then there is the problem of the relevant material which does not fall into those two categories. There could be other lines of investigation which are pursued and then abandoned. There could be trails which the defence realises could lead to important evidence or to a genuine defence which might not otherwise be apparent.

All of those are cases where it is necessary to have a wider requirement for prosecution disclosure. I reiterate that it is not our intention to increase the burdens on the prosecution, merely to make the defence disclosure, and its effect on the trial, more effective than it would be under the Bill as drafted.

Fortunately, there is a precedent for this. They may not be the terms used by parliamentary draftsmen, but in the case of Keane in 1994, to which the Minister has already referred this evening, the Lord Chief Justice used words which we have adopted in Amendments Nos. 31, 36 and 44. Because wording in legislation is so boring, and because the Lord Chief Justice is certainly not boring, I hope that the Committee will forgive me if I read what he said, because it contains a lot more oomph than one normally finds in Bills. He said:

    "and which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue".

I know that we do not use the words "sensible" or "fanciful" in legislation, but the noble and learned Lord the Lord Chief Justice made his point. He pointed out that the gateways were far too narrow, that they could well be widened, that secondary disclosure by the prosecutor was an important element in the just and effective conduct of the trial, and that such disclosure would not be an obstruction to the judicial process. I do not believe it can be said that these criteria, since they have been spoken by the Lord Chief Justice himself, can possibly be an obstruction to the criminal law process. We believe that they, or something like them, perhaps couched in more diplomatic terms, will be a valuable addition to the Bill. I beg to move Amendment No. 31.

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