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Lord Campbell of Alloway: My Lords, will my noble friend the Minister resolve a matter of puzzlement that arose between the speech of the noble Lord, Lord Eatwell, and his subsequent intervention? Was it not the gravamen of the noble Lord, Lord Eatwell's complaint that we were taking part in the formulation of the framework? If that is so, and if Mr. Blair now has substantially the same policy as we appear to have--that we go in if it is in our interests--is there not an inconsistency between that and the first speech of the noble Lord, Lord Eatwell?
Lord Mackay of Ardbrecknish: My Lords, that is what I thought when I listened to the noble Lord, Lord Eatwell's intervention, but I am sure that he did not mean that. I am sure that he agrees with his party's policy--which is now alongside the policy that we have had for some time--that we should make a decision
about joining EMU at the right time, when that has to be done, and in the interests of the United Kingdom. Meanwhile we should play a full part in the negotiations, in all the detailed work leading up to the creation of EMU and that decision. We can then make the decision on the basis of full knowledge of what is on offer and in the knowledge that we have played our part in building, if I may describe it as such, the house in which EMU is going to live.
Lord Tordoff: My Lords, it may be of assistance if I say a word on the scrutiny situation in your Lordships' House. Not everybody will be aware that Sub-Committee A of the Select Committee under the chairmanship of the noble Lord, Lord Barnett, has recently been reviewing this matter for some weeks on the basis of letters sent by the Chancellor, which have been referred to--I hasten to add that they are not the actual confidential documents, but a precis taken from those confidential documents. That scrutiny process has been completed so far as concerns the subcommittee and it will proceed to the Select Committee tomorrow. I hope that we can then pass it to the House. That being so, there should be a document available to your Lordships within a reasonably short period which could be the subject of a debate at the earliest possible moment.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble Lord, as I am sure the whole House is, for that explanation of the position of the Select Committee of your Lordships' House as regards scrutiny. As I said earlier, the question of a debate is for the usual channels.
Lord Desai: My Lords, is there not a point worth making about excess deficits? The countries which run excess deficits pay a fine to the market in the form of extra interest rates. Therefore the only difference that a stability pact would make is that that money would go to the European Union rather than to the market as a whole.
Lord Mackay of Ardbrecknish: My Lords, the noble Lord, Lord Desai, makes an important point. At the moment a country pays a "fine" to the markets if it runs excessive deficits. But in the EMU the market would be an all-European one, so any penalty that the market imposed would be on us all. That is why, as far as concerns being in the EMU, it is important to avoid excessive deficits.
Lord Monson: My Lords, the Minister's right honourable friend the Chancellor of the Exchequer is right to maintain that what happens on the Continent affects us whether we are in or out of EMU. But if in a few years' time some of our nearest continental neighbours should run into severe financial or economic difficulties--possibly as a consequence of their well-known underfunded pension liabilities--and are not allowed either to devalue or borrow, they will have either to raise taxes sharply or cut benefits sharply. Would not the consequent civil unrest in countries like
France and Italy make the present French lorry drivers' blockade look like the proverbial Sunday school picnic? Will not turmoil of this nature affect us almost as severely as the non-existence of a stability pact?
Lord Mackay of Ardbrecknish: My Lords, it is a pity that the noble Lord was not present in the Chamber last Wednesday when we had an interesting debate on the very subject of pension provision in Europe and what effect the EMU and the Maastricht Treaty had on it. However, I believe that the noble Lord underlines the importance of having a stability pact. It will simply mean that countries will not have the option of running excessive deficits: they will either have to increase taxation or they will have to reduce the benefits of expenditure. In this Government we believe that that is a thoroughly worthy thing for any government to do. Indeed, it is an important part of any stability pact.
Dental Auxiliaries (Amendment) Regulations 1996
4.30 p.m.
Baroness Cumberlege rose to move, That the draft regulations laid before the House on 30th October be approved [2nd Report from the Joint Committee].
The noble Baroness said: My Lords, these regulations amend Section 45(2)(c) of the Dentists Act and raise the fees which dental auxiliaries pay for first enrolment from £7 to £10; for retention on the roll from £10 to £20; and for restoration of a name onto the roll from £2 to £5. The amendment has been requested by the General Dental Council which is required by Section 45(2)(c) of the Dentists Act to maintain rolls of registered dental therapists and hygienists, collectively known as dental auxiliaries.
The council has had to meet significantly increased costs during the past 12 months in a variety of areas, in particular in connection with extensive repairs to their building. The last increase in retention fees for dental auxiliaries was five years ago. The 382 dental therapists and 3,813 dental hygienists who are currently enrolled with the council carry out sterling work in support of the nation's 29,000 dentists. It is right that they should be registered and that their activity should be regulated. However, that costs money. The proposal will increase the income of the General Dental Council by about £42,000 per year and help to meet the increased costs which I have outlined today. I am sure that the proposed modest increases in fees are entirely appropriate.
Moved, That the draft regulations laid before the House on 30th October be approved--[2nd Report from the Joint Committee].--(Baroness Cumberlege.)
Lord Carter: My Lords, the House will be extremely grateful to the Minister for explaining the regulations. They provide a welcome opportunity to discuss a small but important subject relating to NHS dentistry. Moreover, they give us an ideal opportunity to discuss in depth and at length the general state of NHS dentistry and I am sure that the Minister is fully briefed for such
a debate. However, bearing in mind the amount of business on the Order Paper for today, and the fact that I have tabled an Unstarred Question for later, I do not propose to discuss the matter.As the Minister said, the measure before us deals with a small but necessary change to the administration of the registration of dental hygienists and therapists, and not the more urgent issues that we believe are facing NHS dentistry. As the noble Baroness pointed out, the registration fees have not risen for some time. While few hygienists and therapists will be itching to reach further into their pockets, I am sure that the majority will consider the increases suggested by the General Dental Council to be fair and long overdue.
We all benefit from the current high professional standards of those who work as dental auxiliaries. An effective registration system is fundamental in order to maintain those high standards. We are, therefore, happy to support the measure today and a wider debate on NHS dentistry as a whole must wait for another day.
On Question, Motion agreed to.
Copyright and Related Rights Regulations 1996
4.33 p.m.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie) rose to move, That the draft regulations laid before the House on 11th July be approved [27th Report (Session 1995-96) 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 EC Directives 92/100 and 93/83, the so-called "rental and lending" and "cable and satellite" directives. They also cover provisions of the so-called "term" directive, 93/98, which were not dealt with in regulations approved by Parliament last December implementing the rest of that directive in the United Kingdom. Except for a few provisions, implementation of the directives is already overdue, and we very much regret that the complexities of the regulations and the need for earlier consultations with interested parties have meant that we have been unable to complete their preparation on time.
Directive 92/100 deals with two areas: first, rights in respect of commercial rental and non-profit lending to the public of copyright works; and, secondly, rights granted to performing artists, record producers and broadcasters as regards other forms of exploitation of works and performances. Most of the latter rights are already provided in the 1988 Act, and the main changes to UK law resulting from Directive 92/100 are therefore in the fields of rental and lending. The 1988 Act already grants rights to authorise rental of computer programs, films and sound recordings, but the directive means that such rights will now also apply to almost all other kinds of works including, for example, music and works of art. Moreover, the directive requires that rights to authorise rental of films and sound recordings are granted not only to producers of those works, as is
already the case in the United Kingdom, but also to contributing authors and performers. In the case of films, however, the directive specifies that these rights of performers are presumed to be transferred to the producer on contracting to make a film, unless there is agreement to the contrary. We are also applying a similar presumption to most authors' rights, as is permitted by the directive.However, as required by the directive, authors and performers will retain a right to equitable remuneration for rental of films and sound recordings where their rights to authorise rental have been transferred to producers, whether voluntarily or by presumption. The directive leaves freedom to decide from whom this remuneration may be claimed, and we have concluded that it should be payable by producers, with whom authors and performers already have contractual arrangements under which they receive payments for rental. The remuneration right will not become exercisable until 1st April 1997, again, as is permitted by the directive.
The directive also requires public lending rights to be provided for the same kinds of works and beneficiaries as in the case of rental, but permits certain categories of establishment to be exempted from liability for lending. The regulations provide that schools and other educational bodies will be exempt, and in practice, therefore, the lending provisions will be mainly of relevance to public libraries. The directive also offers a choice between granting exclusive rights to authorise lending, or rights to remuneration for lending. In the UK, authors are remunerated for public library lending of books through the scheme established under the Public Lending Right Act 1979, and the regulations provide that that arrangement will continue. However, UK law already grants exclusive rights to authorise library lending of films, sound recordings and computer programs. The regulations maintain this approach and extend it to other forms of works to which lending rights will now apply, but subject to a reserve power for the Secretary of State to order that lending shall be licensed, as against payment of royalties, in cases of unreasonable refusal to permit lending.
Directive 92/100 has also necessitated a considerable number of adjustments to the 1988 Act in order to put certain performers' rights on a similar footing to those of authors, which was not previously the case. In addition, it requires the introduction of two new rights for performers, those being a right to authorise distribution of recordings of their performances and a right to remuneration for broadcasting and public performance of sound recordings of their performances. The directive leaves considerable flexibility as to the manner in which that latter right is formulated, and the regulations are framed such that performers will have a right to be equitably remunerated by sound recording producers, who already have rights enabling them to obtain payment from users.
Directive 93/83 on cable and satellite broadcasting necessitates two main changes to UK law. The first concerns which national copyright law should apply to satellite broadcasts and, as required by the directive, the
regulations provide that this will be the law of the country of origin of the broadcast, subject to certain safeguards applying where a broadcast commences in a country with lower copyright protection than the EEA but an EEA broadcaster or satellite uplink station is involved. The other main change is a requirement that copyright owners collectively exercise rights to authorise cable retransmission of broadcasts from other EEA states containing their works.Two remaining aspects of Directive 93/98 are also dealt with in the regulations. The first is a requirement to introduce a 25-year period of protection of a kind similar to copyright for the benefit of the first person to make available to the public a previously unpublished work in which copyright has expired. The other is a requirement to treat principal directors of films as authors of films for copyright purposes. However, the directive leaves freedom to determine who else is to be so treated, and the regulations provide that, as now in the United Kingdom, film producers will remain authors, along with directors. In addition, as permitted by the directive, the authorship change will not apply to films created before 1st July 1994. The regulations also contain a number of transitional provisions chiefly concerned with the new rental and lending rights resulting from Directive 92/100, which will apply to existing works and performances.
We received many submissions from interested parties, for which we are grateful, and we have done our best to take them into account in formulating these complex regulations. However, we have had to strike a balance between competing points of view on areas of the directives which leave flexibility to member states. Inevitably, it has not been possible to satisfy everyone, but I am confident that the solutions we have arrived at are both fair and workable. I beg to move.
Moved, That the draft regulations laid before the House on 11th July be approved [27th Report (Session 1995-96) from the Joint Committee].--(Lord Fraser of Carmyllie.)
4.40 p.m.
Lord Brain: My Lords, I thank the Minister for introducing the statutory instrument in the way that he did. He took on board in his introduction a number of points that I might have made; therefore I hope to be shorter than I might otherwise have been.
As usual when speaking in a debate on copyright I declare an interest to the extent that I am treasurer of the British Copyright Council; however, today, I do not have any financial interest in any of the matters under discussion. First, I should like to repeat the remark made in another place that it is a great pity that these directives were not implemented by means of a Bill rather than a statutory instrument. Had it been done in that way, with the Committee stage perhaps being held in the Moses Room, we should have been able to elicit answers more quickly and concisely and I should certainly not have had to make the long speech that I now have to make.
I thank the Minister for one part of the statutory instrument which he did not mention; namely, the tidying up of the directive on duration in relation to the
life of photographs. When it was debated last December, I made the point that there was some doubt. The Minister has taken the matter on board and I thank him for clarifying it.The directive relating to cable and satellite transmissions is relatively clear and straightforward. There is one small point on which I should like confirmation from the Minister when he replies. Paragraph 7 of the statutory instrument adds a new Section 144A to the 1988 Act. New Section 144A (1) correctly states that the owner of the copyright may,
- "grant or refuse authorisation for cable re-transmission".
The Minister made that point in his opening remarks. However, all the other paragraphs of new Section 144A appear to assume that the cable re-transmission right will be granted. I think that that was simply the easiest way to draft the clause; however, I should like confirmation that there is not a presumption and that a licensing body can still refuse authorisation.
The most important directive covered is that on rental and lending. I shall not repeat the two principal aims in the explanatory recital of the directives. They were well repeated in another place. The first establishes the right of authors to share any income generated from the rental of any work to which they have made a contribution. The second states that that remuneration has to be equitable or fair.
A general point emerged from the debate in another place. The statutory instrument may not enable the generally weaker negotiating parties--authors and performers--to achieve their equitable remuneration against wealthy companies easily. They may have to go to the courts or the copyright tribunal, as suggested several times by the Minister in another place, to have matters settled. Does the Minister consider that one of the basic aims of all collecting societies should be to enable them to fund actions by their members to establish some case law? Could one interpret new Section 191G(6), set out in paragraph 21 of the statutory instrument, as encouraging that? Case law in this matter is important. Another point is: is there any way by which the copyright tribunal might act as a mediator rather than an adjudicator and so speed up the process? I do not know what the feeling is; nor do I know the exact detail.
Following the points on equitable remuneration and how it is to be obtained, I am slightly concerned about two parts of paragraph 10 of the statutory instrument. It relates to new Section 18A. Two pairs of words concern me. The first is,
- "making a copy of the work available".
I hope the Minister can confirm that those words apply only to a copy that has been correctly authorised under Section 16 of the 1988 Act and that they are not a licence to make further copies of the work for rental or lending. The second pair of words appears in the same sub-paragraph. They are, "or may be returned". Surely if you lend or rent something you expect it to be returned. The words have an air of allowing an extra copy to be made for the equivalent of sale or gift. What does the Minister feel about those words?
On a similar point, again relating to new Section 18A, I am concerned that subsection (6) might be taken to imply that the original copy could be lent while an extra copy is made and retained by the person engaged in the rental or lending. I hope that the Minister can confirm that I do not misunderstand the paragraph.
Turning to paragraph 11 of the statutory instrument, as I understand it new Section 36A is to be read with new Section 18A, giving the result that there is no infringement of any right met by an educational establishment provided it meets the operation of subsection (5) of the new section. In other words, it is part of the educational activities of the establishment that something is lent out and there is no financial benefit beyond the normal covering of the costs of that establishment and that it is not a rental.
Turning to paragraph 12 of the statutory instrument--this is the complicated part--am I right in thinking that the Government's aim in drafting new Section 93A as they have is to ensure that the film or video producer is the first link in any chain leading to the income to be divided under Section 93B so that it may benefit those holding these rights to income? Does it follow that should the producer have ceased to exist--this may sometimes happen when a film company is formed just to make the film or video and then put into voluntary liquidation--the rental rights can be traced by following the copyright chain to any particular body? Do the Government agree that because a copyright continues to exist, so must a rental right? Does the Minister consider that the wording of the clause allows an application to the copyright tribunal so that the links in the chain to a source of potential income can be identified? If he does agree, is there any way that there could be a direction issued by the copyright tribunal so that the chain has to be disclosed to those entitled to that income without the expense and/or delay of a copyright tribunal hearing?
Having discussed and questioned at some length how income may have been generated and traced, I now move on to how it may be shared by applying the principles of "equitable remuneration" and "the importance of the contribution" made by the various people likely to benefit from the income generated. In doing so, I refer to paragraph 14 of the statutory instrument. New Section 93B sets out the position reasonably clearly, but I have three questions.
Is the separation in new Section 93B(1)(a) and (b) of the author and principal director meant to suggest any difference in balance between the amounts of contribution? I suspect not. Am I right in thinking that Section 93B(3) is intended as a link in the chain that I described earlier with the intention of enabling rental income to be recovered from the person receiving significant income from the rentals, who is probably a distributor or a wholesaler rather than the local video shop? I do not think that producers, unlike some collecting societies, have the ability to visit every video shop in the way that collecting societies visit hairdressers, and so on. I believe that that point is fairly important.
Does new Section 93B(4) imply that the parties to any agreement must have available to them the full details of any rental agreements and of all income resulting from the rental flowing to the rental right owner? Can they go to the copyright tribunal to ensure that they receive the information? This appears to be covered by the new Section 93C, but I should be grateful if the Minister could confirm that subsection (4) does not prevent an application under subsection (2) if, for example, the single payment was made on the basis of, say, 500,000 copies being rented when in fact the film or video in question turns out to be a blockbuster and 5 million copies are sold.
I now turn to performers' rights. As the Minister said, these are new rights and will result in many more additions to the 1988 Act. Am I right in saying--I think the Minister more or less confirmed this--that these new sections give the performers largely the same rights as I have discussed at some length for authors? Authors have a well established network of collecting societies, both in the UK and abroad, for the collection and distribution of income from rights. Is it the intention of the statutory instrument that performers should establish, under new Section 191G(6), a similar network? The wording is:
- "a 'collecting society' means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration on behalf of more than one performer."
I hope this implies that it will have to be managed so that the money can be distributed to the performers.
Finally, having discussed what these rights are and how income from them may be traced, I have a question with regard to giving notice as required by paragraph 33 of the statutory instrument. Should this notice be given in writing? Can it be given by the author's or performer's agent, manager or collecting society? To whom should it be given, the producer, the director, the distributor or the rental right owner? Can the Minister think of anybody else who might need to be informed? Can the copyright tribunal remedy any defective notice when it has been impossible to complete the chain to ensure that it ends up on the right desk or the right fax machine in the time available? I am well aware that these draft directives have existed since July, but some of the members of the British Copyright Council are uncertain as to their exact meaning. I believe that the closing date for giving this notice is 31st December of this year. I should therefore be grateful for clarification from the Minister with regard to rectification by the copyright tribunal. I believe that the letter from the Minister, Mr. Ian Taylor, to Mr. Geoffrey Hoon following the debate in another place confirms that equitable remuneration should be given for all agreements made prior to 1st July 1994 concerning all works still in copyright as amended by the duration statutory instrument. It has been suggested that the date of the original directive might have a bearing on this, but I understand that that is not so.
I apologise for the length of my speech. I was aware, as I have explained, that the letter was in the Library, but I was unable to obtain an accurate copy of it in time to consult and I have therefore had to ask the Minister questions.
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