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Baroness Hamwee: My Lords, perhaps I may intervene. That includes receiving a letter just after one has finished one's speech.
Lord Peston: My Lords, I am indebted to the noble Baroness. I am as sympathetic to producers as I am towards anybody else. Certainly, as regards the television companies, I am also sympathetic to their concerns about unreasonably withholding consent and that kind of thing. If no one tells me about it, there is not much that I can do. There are other areas where occasionally I believe I know what I am talking about,
but that does not happen very often in your Lordships' House. Most often I am in the hands of others, and I believe that many noble Lords are in that position. My main point is that ultimately this provision has to be a good thing for performers. One hopes that in practice it will be of benefit to them.I now turn briefly to one or two points of detail, although I am sure that the Minister is perfectly well aware of them and can respond easily. I was surprised to learn that many composers have their own companies and that one effect of the directive and statutory instrument is that it may place a very considerable burden on such small businesses in order to make sure that they get their rights. They involve themselves with all sorts of monitoring procedures which are extremely costly. For example, a great deal of emphasis is placed on having access to the Copyright Tribunal. Clearly, people should have access to it, but my experience is that it is immensely expensive. A composer may just about know how to compose a piece of music--frequently not to my taste these days--but the idea that the composer may have any of the skills required to go to the Copyright Tribunal and argue about matters of remuneration and things of that nature without enormously expensive legal backup, is far fetched. I have been as supportive of the Government as one can be in terms of getting rid of unnecessary legislation; but I am worried that we are creating yet again a regulatory minefield here.
The next point is one to which noble Lords have already alluded. I understand the position of the department to be that the statutory instrument correctly implements the directive. The Minister has himself told me that, and I am sure that he will repeat it in a moment. As always, I look forward to what the Minister has to say. However, the view of my advisers is that even if in spirit it formally embodies the directive, it is still some distance away from doing what it ought to do. My noble friend Lady Dean points out that in some respects it appears to be less generous than the amount performers and others will get in the rest of the Community. I should like to hear the comments of the Minister on that point. The whole point of the directive in the first place was to produce a uniform situation throughout the Community in which everybody was treated in the same way. I should like to emphasise that point.
Many noble Lords have made the point--I simply go on record as saying that I am sympathetic to it--that at the root of the approach that we adopt here is the producer's right in this matter and that everything else stems from it. Critics outside and noble Lords have said that the lack of a right exercisable directly against the user means that, for example, the performer always has to go through the owner of the copyright in sound recording. One must place on record that that is not entirely satisfactory.
I do not want to prolong these matters, although I find all intellectual property matters fascinating. However, I believe that we should hear a little more from the Minister on the question of libraries. This matter was raised by my noble friend Lady David. I am very concerned about what is happening with the new technology in libraries generally. The example cited by
my noble friend was a very good one. As I understand it, one can go to a library and look at the Oxford English Dictionary as a reference work and indeed any other reference work.Many of us in our younger days, or even today--although noble Lords have access to the Library--relied on the reference sections of public libraries. They have been a boon to all kinds of people. It seems to me to be a matter of fundamental principle that where works of reference appear on CD-ROM access to them should remain unchanged, although their form may be different. Just as I can make a photocopy of a definition in the Oxford English Dictionary, as my noble friend implies, I ought to be able to print off exactly the same definition from CD-ROM without any infringement, or no greater infringement than would arise with a photocopy. One merely cites the Oxford English Dictionary as an example, but one has in mind the whole range of reference works on CD-ROM.
As I shall point out in the next debate in your Lordships' House, being a computer nut--perhaps that is a bit too strong--or someone who is obsessed with what can be done both with computers and on-line, I am extremely concerned about what is happening in this area both in relation to costs and the whole question of copyright works. The noble Lord will be happy to know that I shall save some of those remarks for the next debate. I believe that a good deal of reassurance is required that libraries will not be undermined by something that ought to be a boon rather than a threat to this kind of public service.
I feel that 10 minutes is enough. The Minister has a good number of questions to answer. There are many matters that one can take further but those will have to be saved for another day. I finish where I began. I hope that nothing that I have said will be interpreted as opposition to the appearance of definite lending and rental rights for all the relevant people. It is an important step and one that I strongly support.
5.34 p.m.
Lord Fraser of Carmyllie: My Lords, during the course of this debate on the regulations I have been asked a number of very detailed questions. I indicated at the outset that we had spent a considerable time on consultation on this matter. I appreciate that those who are concerned want as many answers as they can possibly get to the points that have been raised. I regret that I shall be unable to answer all of the questions, not only out of courtesy to those who speak in subsequent debates, but, more importantly, because such is the detail of the questions that I wish to be confident that every answer I give is accurate. While I shall attempt to answer a number of questions, as to those that I fail to answer I undertake to write to those concerned and make available the letters more widely so that any points of detail can be understood.
The noble Lord, Lord Brain, asked whether the regulations allowed authors and performers to achieve equitable remuneration for rental. We believe that they do. We appreciate that both authors and performers are concerned. They may have to undertake copyright
tribunal proceedings in order to establish what is equitable. I do not believe that there can be a formula to determine what is equitable given the nature of the concept. That being so, it appears that ultimately there is no way to avoid resort to some legal mechanism. If it were not the tribunal it would have to be the courts. If there is a concern about cost, I believe it is a matter of common agreement that if tribunal costs are high the likelihood is that court costs will be even higher. We would like to see agreement reached wherever possible to minimise that cost.I apologise if I appear to dart about a little but, as will be understood, this is a fairly complicated matter. The noble Baroness, Lady Dean, asked why Article 8.2 of the directive was not implemented so as to give performers rights exercisable against users and a more equal share of royalties with record producers. The regulations allow a fairly large degree of flexibility. We have attempted to utilise that flexibility to ensure that what is included fits into the pre-existing framework in the United Kingdom. For many years only record producers have had rights enabling them to obtain royalties from users. We do not consider it necessary or desirable from the point of view of users to disturb such long-standing arrangements. Granting performers rights exercisable against users would also mean the restructuring of producers' rights to ensure that there was only a single payment by users which was then shared between producers and performers and specified in the directive. We firmly believe, therefore, that the directive's requirement for performers to receive a share is best met by granting them the right to be equitably remunerated by producers.
As we understand it, where performers are granted a 50 per cent. share it is usually in respect of traditional forms of broadcasting and performance. The rights being granted to the United Kingdom will apply also to newer forms of exploitation that are now emerging but which have yet to become established in practice. We are reluctant to prescribe a share in these changing circumstances.
The noble Baroness further suggested that performers would be likely to have difficulty obtaining payments from other EU states unless their rights in the United Kingdom were similar to those elsewhere. The directive does not require full harmonisation in this area. The approach we have adopted should not affect the rights of UK performers under the treaty to claim payment in other EU states on the same basis as nationals of those states. Moreover, performers will have rights which are not transferable by them to producers and can be exercisable collectively against producers. That should assist in enabling them to reach reciprocal arrangements with collecting societies in other EU countries.
The noble Baronesses, Lady Dean and Lady David, asked why the regulations granted owners rights to control public library lending. It was a theme to which the noble Lord, Lord Peston, and the noble Baroness, Lady Hamwee, returned. I stress that book lending--clearly the most significant category--will essentially be unaffected since most books are covered by the public lending rights scheme which will remain in place. This gives authors only a right to payment for lending.
I am aware that libraries would prefer a similar approach to be taken for other kinds of works. However, we do not consider that that would give the owners of rights sufficient protection. It would not allow them to seek conditions aimed at preventing unauthorised copying, especially of material in electronic form. The noble Lord, Lord Brain, raised a concern about further copying in such circumstances.In many respects the economic impact of lending is no different to that of commercial rental, which is subject to exclusive rights of control. Therefore, we believe that similar rights should apply in the lending field but with the important safeguard that we are retaining part of the order that lending be licensed since we are conscious that public libraries should not face unreasonable restrictions on lending. In addition, existing lending stocks will not be subject to the new rights of control.
The regulations do not alter the position in regard to the inspection of works in public libraries. The example that was put to me of on-the-spot reference is not lending within the meaning of the directives.
I was asked why the Government do not take more material into the public lending right scheme in order to reduce burdens on libraries. That is a matter for my colleagues in the Department of National Heritage. They have no current plans to extend the scheme to include new categories of material lent by public libraries. We are now obliged by the directive to introduce new lending rights for all kinds of works and we have taken the view that we should achieve that by establishing the new rights set out in the regulations.
The noble Lord, Lord Brain, inquired whether the intention of the new Section 93A is to ensure that a film or video producer is the first party responsible for payment of remuneration for rental. In fact it is Section 93B which specifies by whom the remuneration is payable, and the purpose of Section 93A is primarily to ensure that at the time the film was made the film or video producers had the necessary consents from the authors for rental of the work by introducing, as permitted by the directive, a legal presumption that unless there is an agreement to the contrary the rights of authors to authorise rental are transferred to the producer.
It is Section 93B which provides that in the first instance film producers will be responsible for that equitable remuneration of authors. It also provides through subsection (3) that if a film producer ceases to own the exclusive rental rights in the film, then his successor in title would be responsible for paying any outstanding remuneration. I hope the noble Lord will forgive me if I do not now answer some of his very erudite questions, but I will ensure that he receives answers.
The noble Baroness, Lady Hamwee, asked whether the wording of Section 18 is compatible with the right of the copyright owner in Section 16 to do certain exclusive acts in the United Kingdom, including the issue to the public of copies of work and whether therefore the reference is intended to have effect in relation to extraterritorial acts.
Section 18 defines the meaning of the right referred to in Section 16. It previously defined that right as being exhausted by the first issue anywhere in the world of copies to the public. Therefore, there is nothing new in Section 18 being affected by extra territorial acts. However, the regulations will now limit the effects to the benefit of copyright owners so that exhaustion only happens when the copy is first issued in the EEA rather than anywhere else in the world. It will be limited to act only when it occurs within the EEA rather than anywhere else in the world.
The noble Baroness also asked why the regulations do not make provision for encrypted programme-carrying signals as required by Article 1(2)(c) of the satellite and cable broadcasting directive. That is because Section 6(2) of the 1988 Act already contains the effect to which she refers. The noble Baroness also asked why the regulations do not contain an express provision on the author's exclusive rights to authorise the satellite transmission of his work and why they do not contain any provision ensuring that the acquisition of such right must be obtained only by agreement. The answer is the same. The regulations do not mention them because the Act already incorporates those points.
The noble Lord, Lord Brain, asked a detailed question about whether the tribunal would have the power to order the production or discovery of documents. I understand that the tribunal already has the power to make such an order requiring all parties to produce all documents in their possession or power which are called for. That is certain to extend to documents disclosing details of income. Had we introduced a separate requirement to provide information, it would not avoid the possible need for legal proceedings, since the requirement would be of no value without some means of redress in cases of failure to comply with it.
I am conscious that I have not answered all the questions asked of me but I hope that I have singled out the most important. I will ensure, having scrutinised the record, that any unanswered questions are addressed.
On Question, Motion agreed to.
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