Clause 8. — (Special Exception in Respect of Records of Musical Works.)

Orders of the Day — COPYRIGHT BILL [Lords] – in the House of Commons am 12:00 am ar 24 Hydref 1956.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr William Morrison Mr William Morrison , Cirencester and Tewkesbury 12:00, 24 Hydref 1956

The next Amendment I call is that in the name of the hon. Member for Twickenham (Mr. Gresham Cooke). It occurs to me that he might discuss with it all the consequential Amendments in his name, of which there are a number on the Amendment Paper. I suggest also that the hon. Member for Rossendale (Mr. Anthony Greenwood) and the hon. and learned Member for Walsall, North (Mr. W. Wells) should discuss the Amendment which follows to page 12, line 12. If, at the end of the discussion, the hon. Member wishes to have a Division upon that Amendment, and if it were moved formally and seconded properly, I would put it to the House.

Photo of Mr Roger Cooke Mr Roger Cooke , Twickenham

I beg to move, in page 11, line 36, to leave out subsection (1).

Thank you, Sir, for calling my Amendment. I agree, of course, that the other Amendments on the Amendment Paper standing in the name of myself and my hon. Friends are consequential.

As I understand the position, it has been the law since 1911 that once a company has made a record of a composer's work, any other company may also claim the right of making a similar record of the same work. What I would like to ask the Parliamentary Secretary to explain to us when he winds up this debate is why should a composer have to give an automatic right to anyone to make a record of his work.

The position is rather different from that of 1911 when there were perhaps only a few reputable gramophone companies making records. Nowadays all sorts of people are using tapes and tape recordings, and the entire process of reproduction is very much easier and therefore rather different from what it was thirty or forty years ago. So I should like to know the answer to this question put to me by writers of songs and music: Why should they allow any Tom, Dick or Harry to make perhaps an unsatisfactory recording of a composer's work? It may be that the person claiming the right to make a record is in an unsatisfactory financial position from which the composer cannot perhaps get his royalties. Therefore, why should a composer be tied to such a person?

I have not heard it first-hand, but I am told there is a case, which the Board of Trade knows about, where a recording company purchased a nominal number of stamps and then proceeded to make a much larger number of records than was warranted by the number of stamps bought. Then they sold the records through the post to the public, and so there was no check on the composer's royalty, who, of course, was not paid the full amount of money to which he was entitled. That is the kind of thing which I am told is happening in practice. It is not just imaginary.

In France I believe there is no automatic right of reproduction of composers' works, and it does not seem to me that there is any difficulty there. Nor has it led to composers restricting the reproduction of their works or the setting up of any form of monopoly in reproduction.

I was not present during the Committee stage of this Bill, so I should like to hear the reasons why composers are expected to go on for all time—because it will be for a long time after the passing of this Bill—giving an automatic right of reproduction to any company that claims it.

Photo of Mr William Wells Mr William Wells , Walsall North

We on this side of the House are not in love with the principle of the compulsory licence, and we well understand that this question arouses strong feelings on the part of those representing copyright owners. It also arouses strong feelings on the part of performers and those interested in performing rights. I think that the hon. Member for Twickenham (Mr. Gresham Cooke) has made some forceful points in connection with the practice in France and, in particular, about the change in the conditions in the gramophone industry of this country since this principle was first introduced in the Copyright Act, 1911.

Nevertheless, it would be wrong to ignore the serious consideration that has been given to his question, both during the Committee stage of this Bill and in the long and authoritative proceedings of the Copyright Committee. I would draw the attention of the House to the paragraphs in the Report of the Copyright Committee dealing with this question. They are to be found on page 31. Paragraph 80 reads: In order to understand how the present situation has arisen, it is necessary to refer to Article 13 of the Berlin Convention, 1908, which for the first time gave to authors the right to authorise the mechanical reproduction of their works. This Article was considered by the Copyright Committee of 1909, which recommended that the right should be recognised in our law. At the same time the Committee accepted the representations made by the gramophone companies that they themselves were entitled to copyright, which the Committee recommended should be restricted to a right to prevent the copying or pirating of a record so produced. Representations were made to the Copyright Committee on behalf of the gramophone companies that once a manufacturer had been licensed by the copyright owner to make records, any manufacturer who chose might thereafter also demand a licence from the copyright owner on payment of appropriate fees. The Committee did not agree with the representations made by the record manufacturers, and recommended that the author's right to authorise reproduction by mechanical means should remain his without qualification. Nevertheless, Subsection (2) of Section 19 does provide that once 'contrivances' (e.g. records) have previously been made by or with the consent or acquiescence of the owner of the copyright in the work being produced, and subject both to compliance with certain formalities and to the payment of a prescribed royalty, any manufacturer may thereafter make records of that work. 7.30 p.m.

Paragraph 81 says this: In view of the fact that this provision has been the law of the land for forty years, during which time interests have grown up, we do not feel that a sufficiently strong case has been made out for making a fundamental change now in the right given to the gramophone companies to prevent the copying or pirating of records made by them, or for altering substantially the conditions under which recordings subsequent to that first authorised by the composer may be made. We think that no one will question the justice of preventing trade competitors from copying a record made by a gramophone company. Our second recommendation, namely, that the right of the gramophone companies to record copyright material which the composer has already authorised for recording shall continue, may be more open to question, but the principle was clearly enunciated by the Legislature in the Copyright Act of 1911, and we see no sufficient grounds for recommending any substantial change in a practice which has a history of 40 years behind it. Therefore, I think it is pertinent to make two observations. First, that the right of the owner of the copyright to make any charge in respect of a recording is a creature of statute, and, second, that after all, although there may be changes in the conditions in the gramophone industry now, as compared with 1911, I do not think—and I do not think it has been argued—that these changes have come into being since 1951, which was the year of the Copyright Committee Report. It follows, therefore, that this very authoritative Committee, going into the matter in great detail in 1951, and being fully aware, as I think the two paragraphs which I have read show, of the various difficulties involved in the problem, nevertheless on the whole came down on the side of leaving the compulsory licence principle inscribed in our legislation dealing with copyright.

It is, I suppose, a good Conservative principle, though I cannot pretend to be an authority on good Conservative principles, not to interfere with the structure of an industry unless an overwhelmingly strong case, or at any rate a very clear case, has been presented that the present structure involves abuses. [HON. MEM- BERS:"Hear, hear."] Unfortunately, the Government is a Conservative one, and the majority of the House of Commons is a Conservative one, and, therefore, if one's views are to be carried into law, one has to carry the Conservative majority with one, unless one can ensure that they are not there at the appointed time, which is sometimes difficult, owing to the vigilance of the Patronage Secretary.

Therefore, it is clear that while this is a matter of great difficulty and one on which, standing here in 1956, one might wish that different views had been taken in 1911 and that there had been more pre-vision of what might happen afterwards, nevertheless, forty-five years have gone by and the structure of the industry has been built up. We feel that a very great responsibility would rest on those who, in view of the evidence adduced before the Copyright Committee, and in view of the obvious fact that the industry has grown up around the rights established in the 1911 Act, wished to alter it without the clearest evidence that that alteration was necessary.

That was the line which we took in Committee, and it is the line that we take now, but, in Committee and again now, having as almost the forefront of our object in relation to this Bill the improvement of the conditions of creative artists and the increasing of the incentives, such as they are, to those who are gifted in musical and other artistic directions to use these talents, we are most anxious to write into the Bill such safeguards as we can to make sure that the artistic heritage of this country is not diminished, but is enhanced, strengthened and nourished as a result of the labours of the House on this Bill.

It was for that reason that, amongst other Amendments which we put down in Committee, was one by which we sought to exclude the operation of the Clause in respect of certain classes of records ; that is, the classes of record whose playing time exceeds four minutes. The hon. and learned Member for Bolton, East (Mr. Philip Bell), with his usual perspicacity, pointed out that a gramophone record generally has two sides. It is wonderful what experience of life a lifetime of service at the Chancery Bar will give, and we were certainly grateful to the hon. and learned Gentleman for giving us that information, which, in some peculiar way, seems to have escaped our notice. Therefore, in order to meet that very pertinent criticism which the hon. and learned Gentleman made of our efforts upstairs, we are now seeking to write into the Bill, by our Amendment in page 12, line 12, the words Provided that this subsection shall not apply to a record of a work or works if the playing time of the record exceeds eight minutes. The hon. and learned Member for Bolton, East also pointed out, and it may well be the truth—in fact, clearly, in some examples, it is the truth—that the main object, as we have put it forward, of the Amendment which we have proposed in Committee was to ensure that compulsory licence should not apply to works of classical music, but should only apply to works of purely ephemeral value, such as jazz and "rock and roll" and all those other musical variations which cause a certain amount of excitement and disturbance in various quarters.

The hon. and learned Gentleman pointed out that there were long-playing records of jazz as well as of classical music. That may as a proposition be true, but it is perfectly clear, I should have thought, within the experience of all who listen to music, that the great majority of long-playing records are of rather good and serious music. Long-playing records, I believe, are much more costly to produce and they are certainly much more expensive to buy. Therefore, people who spend their money on these long-playing records will probably want to enjoy their use for a long period, and on the whole people who want to hear the same music very often, tend to want to hear good music.

Therefore, I believe, as I believed when we argued this matter upstairs, that in substance our object of removing the classical music from the scope of the Clause would be achieved by a rather simple form of words such us we have now put forward. We shall put forward at least one more set of Amendments related to this provision of the compulsory licence, but I hope that on reflection the Government, having heard the expressions of opinion on both sides of the House about the compulsory licence, will feel able to accept the Amendment which we are now putting forward in relation to the length of the playing time. I shall move that formally. If the hon. and learned Gentleman or the President of the Board of Trade do not indicate their ability to accept that Amendment we shall in due course press it to a Division.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

The hon. and learned Member for Walsall, North (Mr. W. Wells) referred to the views expressed by both sides on this point. I listened with the care with which I always listen to the observations of my hon. Friend the Member for Twickenham (Mr. Gresham Cooke) and my hon. Friend the Member for Wembley, South (Mr. Russell), and it will be within the recollection of the House that they moved their Amendment in what I might call an interrogatory or exploratory vein. They said, very properly, that they had received representations in regard to this matter, and they were anxious to know what we had to say about it from this Box.

I should perhaps start by making this observation about the Amendment moved by my hon. Friend the Member for Twickenham. In the course of the Committee stage upstairs, as the hon. and learned Member for Walsall, North will confirm, I was careful to say that I was certainly not taking any drafting points on this difficult and complex Measure; but the series of Amendments which are being moved by my hon. Friend do not, in fact, make a very cohesive or satisfactory pattern. That becomes a little more important the nearer we get to the end of the proceedings on a Bill.

The operative provision in all this mass of Amendments which are being taken together in the names of my hon. Friends is the omission of subsection (1) of the Clause. That would eliminate the licence of right altogether. The anomaly which would be left, however, is that the Amendments, having done away with the licence of right, would nevertheless retain a statutory rate of royalty and apply it to the first as well as to subsequent recordings. It is, of course, a novel concept that a statutory royalty is required in anything other than the licence of right procedure. The pattern of the Amendments in the names of my hon. Friends is not, therefore, very satisfactory, quite apart from the reasons which I propose to give why the case for the elimination of the licence of right is not well-founded.

7.45 p.m.

My hon. Friend the Member for Twickenham asked why there should be a licence of right procedure to which composers are subject. The first and short answer is that there has never been anything else. Before the Berlin Convention of 1908, composers had no right either to authorise or to prevent the recording of their works. That was their position before 1908. They were unable, in any way, to control the recording of their works. It was only following upon the deliberations of that Convention that our Copyright Act of 1911 gave, for the first time, what we call mechanical rights to the composer.

Therefore, the point I should like to urge upon my hon. Friends in that context is this. It is only under a licence of right system such as prevails today that composers have ever been entitled to receive earnings from the recording of their works. That system, as the hon. and learned Member has reminded the House, has now been in force for 45 years, and some degree of prescription must, I think, attach to anything which has been in force for so long.

We perhaps differ on the two sides of the House as to the degree of authority that we would give to such a prescription, but nobody, I think, with the possible exception of the hon. Member for Edge Hill (Mr. A. J. Irvine), who likes to be sui generis in these matters, is likely to dissent altogether from that proposition.

Photo of Sir Arthur Irvine Sir Arthur Irvine , Liverpool Edge Hill

Does the hon. and learned Gentleman know of any other merit which this proposition has than the circumstance that it has survived for 45 years?

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

I am coming to that. Perhaps I might finish this point first.

The Copyright Committee, which investigated this matter with great authority and to which the hon. and learned Gentleman has been good enough to refer, came to the conclusion at paragraph 81 of its Report that it saw no sufficient grounds for recommending any substantial change in a practice which has a history of 40 years behind it. The hon. and learned Gentleman gave a good definition of what should be a sound Conservative approach to these matters. It was put more tersely and, perhaps, happily by Lord Falkland when he said that when it is not necessary to change it is necessary not to change. There is certainly no case made here for varying the practice of 45 years.

To deal with the point made by the hon. Member for Edge Hill about the advantages of the system, I would think they are these. First, the advantage to the public is that it gets free competition between record manufacturers in respect of copyright music. For the composers, they have the protection, in the licence of right procedure, of royalty rates fixed by a statutory procedure after the holding of a public inquiry.

They will get the further advantage beyond what they have had under the Copyright Act, 1911, that the rates, as hon. Members will know, can be fixed in relation to any one or more classes of records, and all this will enable a differentiation to be made in respect of long playing records which very properly exercise the minds of hon. Members.

My hon. Friend the Member for Twickenham and other hon. Members adverted to the suggested disadvantages of this procedure, basically the disadvantage that may arise in respect of the reputation of the higher calibre composers. However, although I have no doubt that the apprehensions are sincerely felt, in practice they are exaggerated. The House will have in mind that the market for this type of music, the better and more serious type of music, is to some extent a specialist, limited and discriminating market, and on that market bad recording clearly will not sell.

Moreover, companies which are interested in serious music are no less jealous of their reputation as high-class commercial companies than composers are jealous of their reputation as high-class artists. Again, serious music is difficult to record without the co-operation of the music publisher, because it is normally necessary to hire orchestral parts ; and so control can be exercised by the music publisher, even under the license of right procedure, and nobody has so far suggested that the music publisher would be any less jealous of his reputation and efficiency in these matters than the composer. Therefore, in the vast majority of cases with which we are primarily concerned, with serious, higher-class music, the interests of the recording company, composer and publisher are happily identical.

Another issue raised by my hon. Friend and the Performing Right Society, the growth of recording companies, some of which are thought to be not of high standing, is covered by the considerations to which I have just referred ; but I should like the House also to have in mind that these companies are companies which are ignoring their statutory obligations under the licence of right procedure. In doing that they are, of course, infringers, and being infringers under this law, they would be infringers, if they had the opportunity, under any other law. No system of law, however perfect, can provide against the person who is desirous of evading it. If one is negligent or evasive of one's obligation to pay a royalty fixed by statute, one is equally so if one negotiates a royalty by free agreement.

As we are discussing these Amendments together and as the hon. and learned Member for Walsall, North has given notice of certain action he proposes to take with his Amendment, I should like to address myself to the proposition put forward in the hon. and learned Member's Amendment. His attitude is that he agrees that the licence of right procedure should be retained, but he wishes to confine it to records not exceeding eight minutes playing time, four minutes on each side.

I need not remind the House what a very difficult thing it is in practice to draw an appropriate line of demarcation. It is not for want of trying. We have had a shot at it not only in this House, but in another place where this Bill started. It has occupied a good deal of time and ingenuity, but it has not proved possible to establish an appropriate line of demarcation. The original concept was to do what hon. Members might think appropriate in a general sense, to draw the line between serious and other music.

It is generally agreed, and it is not otherwise suggested in the hon. and learned Member's Amendment, that such a line of demarcation is impracticable to draw. What is put forward in his Amendment is an alternative designed as a rough approximation to such a line of demarcation. His line of demarcation would not operate satisfactorily, because, as he will recall I said in Committee upstairs, a good deal of serious music takes less than four minutes and certainly less than eight minutes to perform and, conversely, many jazz records and the like last more than four minutes. I understand that some called "long players" actually last half-an-hour and some, like these "rock and rollers," no doubt sound as though they last for eternity. That being so, although the hon. and learned Member's intentions are good, he has failed—and that is no criticism, because everybody has failed all along the line—to establish this line of demarcation.

Perhaps I might be allowed to recall what The Times said in its leader on this point this morning. It says: But it is certainly beyond the wit even of a Parliamentary draftsman"— and we have had the advantage of the most experienced and excellent Parliamentary draftsmen in this Bill— to differentiate in an Act between musical compositions according to their quality ; and with the present speed of technical change it would not be satisfactory to make the distinction by reference to the type of recording. That of course is the second thing which the hon. and learned Member's Amendment proposes to do.

As The Times says, and I will endorse, it is the fact that no differentiation is practicable. We are faced with the choice between keeping the licence of right procedure for all records and dropping it altogether, because there is no difference in principle between one long playing record and six or a dozen playing for a shorter time. One of the reasons we must, if that be the choice, come down on the side of keeping the licence of right procedure is that it is in essence a move against monopoly practices. It is not appropriate to go back on that in the present political and economic climate. The Economist has described this as one of the anti-monopoly Clauses of the Bill. Having cited The Times in my favour, I must in all honesty tell the House that The Times also says : The fear of monopoly is rather farfetched. When there is this war on Olympus, mere mortals should play for safety and adhere to the anti-monopoly position which we have had for 45 years.

What is certain is that this Measure was conceived and designed as an anti-monopoly Measure in 1911. Clearly we cannot afford to be more tender to monopoly in the sharp competitive conditions of 1956 than were our predecessors who were still wrapped in the natural protection of generations of industrial and mercantile hegemony.

Faced with that clear choice, I hope that the House will think it right to keep the licence of right procedure. I hope that my hon. Friend is satisfied with the explanations which I have sought to give him and that he will not press his Amendment and that the hon. and learned Member will not press his, or, in that event, that the House will reject it.

8.0 p.m.

Photo of Sir Ronald Bell Sir Ronald Bell , Buckinghamshire South

I am sorry to speak after my hon. and learned Friend the Parliamentary Secretary, but he will perhaps forgive me for doing so if I assure him that at least I rose before him. I have the misfortune to differ from him on this matter, and I agree with my hon. Friend the Member for Twickenham (Mr. Gresham Cooke). I cannot understand the approach to this matter embodied in the Bill. It seems to me to be an ordinary, simple question of the duty of society to protect a man in the possession and enjoyment of his property, whether it be cabbages or artistic copyright. The man has created something. It is his. It is entirely his business what he does with it, and it is the duty of society to protect him in the possession and enjoyment of that property.

If a man writes a musical work, he is entitled to keep it to himself completely and not publish it at all; he is entitled to publish it to a few people, but not to others, or he is entitled to publish it broadcast. In any of those decisions he is entitled to the support and protection of organised society. If we start with that idea or on that basis, these other considerations of a more complicated kind of public interest never enter into the matter at all. The fact that for forty years society has executed that duty imperfectly, and before that it did not execute it at all in many cases, is really no excuse in 1956 for not improving the law and doing what it is our plain duty to do.

The argument for monopoly completely puzzles me. I have always assumed that the purpose of patent and copyright law was to create a legal monopoly in favour of the author or creator. He having brought the industrial property or the artistic property into existence is entitled to, and is given, a monopoly in its exploitation. Surely, therefore, it is contradictory to describe a Copyright Bill as in any sense an anti-monopoly Measure. Why should not a composer say, "I have composed this song or symphony. I am willing that a certain gramophone company should make records of it and sell them, but I am not willing that any other gramophone company, on any terms whatever, should make those records and sell them."? I do not think that questions like the reputation of the composer or the technical competence of the gramophone record maker enter into this in any way, except as explanatory of the motive which might be in the mind of the composer.

Of course, I agree with what was said by my hon. and learned Friend that to leave in the Stamp Duty is a little unfortunate, if we are proposing to omit subsection (1). Yet if we allow a licence of right to every other gramophone record maker on the statutory terms, are we not in fact imposing the statutory terms also on the first maker of the record? After all, why should he ever agree to give more than the statutory payment, if he knows that from the day he sells the first record, all his competitors can come in under the licence of right and make records of the same work for the statutory price? Quite obviously we are, in practice, in fact limiting the composer to the amount of the statutory stamp. For that reason also I say that the licence of right procedure is bad, as it presupposes the fixed statutory right of duty and that is bound to limit what the composer gets from the first record.

The only argument I have heard against this at all is that this has been done for forty years. After all, the Berlin Convention, on which this law was based, recommended there should be no licence of right. One does not know why the Legislature in 1911 ignored that advice and introduced this peculiar doctrine. All we know is that it has continued for forty years, and, therefore, it is suggested that we should not change it. On that argument, I assume that if we have another Copyright Bill forty years from now, it will then be said that this has persisted for eighty years and therefore it is unthinkable that it should be altered. That is not an argument which has any influence with me, and I hope that my hon. and learned Friend, even at this late period of the Session, when the legislative complications are only too obvious, will at least reconsider this, to see whether the Amendment of my hon. Friend cannot be accepted.

Mrs. White:

I ask the Parliamentary Secretary to realise that there is considerable disquiet on this point among hon. Members on both sides of the House. It is true that through the processes of history this licence of right has been established for forty-five years, but when that legislation was drawn up, the practice of recording sound, and so on, was far less widespread than today, and no one could be expected to foresee its ramifications. I cannot think that the arguments put forward by the Parliamentary Secretary on the merits of the history of the case were really adequate.

What moves me to reinforce what has been said by hon. Members on both sides of the House is that, clearly, the composers themselves are not happy. They made representations earlier in the year on this matter, and since then they have had the advantage of studying all the arguments put forward by, among others, the Parliamentary Secretary himself during the Committee discussion; and they have not been convinced. After all, they are the persons whose work we are considering. It is their "children" with which we are concerned. Plainly, they are not satisfied with the treatment they obtain at present.

I agree that we may have to strike some balance of convenience in this matter; that it would be very disrupting to go all the way and try to expunge the whole principle. But surely, some kind of compromise on this—a matter which is disturbing so many of us—is not unreasonable? Therefore I support the Amendment of my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) and my hon. and learned Friend the Member for Walsall, North (Mr. W. Wells), although I agree with what the Parliamentary Secretary has said, that it is by no means a perfect method of distinguishing between one type of work and another. I also agree that it is impossible to find a perfect Amendment, but nevertheless, this seems to me a not unreasonable way of distinguishing between the more serious and the less serious work to this extent that the composers themselves are clearly of the opinion that these longer playing records, so far as they are concerned, would cover the works about which they are most keenly anxious.

I know quite well that it would also include a number of other lighter things. But the point is that we are including the longer works, concertos and symphonies and so on, the ones about which the composers are most concerned, rather than their shorter pieces. Therefore this is not an unreasonable compromise in a situation in which it is perfectly clear that no perfect compromise can be arrived at.

The Times this morning, in a leading article which has already been quoted by the Parliamentary Secretary, suggested that because of mechanical invention and improvement, any distinction based on, say, the time taken to play a record, or something of that sort, might become out-of-date. If that is considered an objection, there is still time to recommit the Bill and put in something by Order—we are proposing to do something by Order a little later—if we want a greater degree of flexibility. I think that disposes of The Times argument.

It would be a great pity if we passed this Clause as it now stands without making any effort to meet the serious objections which have been raised. We have to recognise that we cannot turn the clock right back. Those of us who support the Amendment are not asking for that. But let us at least do something to meet what seems to be the serious and deep-felt opinion of our most distinguished composers. The names in the published list I think include all the most illustrous names in British music.

Photo of Mr Philip Bell Mr Philip Bell , Bolton East

Let us see whether the arguments put forward in favour of the Amendment are adequate. We are told that composers are not very happy, and that is a depressing thought. Do composers really think that if they were restricted to one gramophone company for the publication of their work they would make more money? On the other hand, some people seem to think that if something is altered it must be bad. What basis have they for thinking that if composers restrict their work, particularly a long-playing work, to one company it will be bad for the composers?

Mrs. White:

There is no suggestion that publication should be restricted to one company, but that the composers themselves might have some control over the quality of the reproduction of their work, which at present they have not.

Photo of Mr Philip Bell Mr Philip Bell , Bolton East

I am talking about the licence. The idea is a speculative one whether under a system by which one gramophone record company only reproduces their work they would benefit.

I am torn between two conservatives, the party opposite on the one hand, and my hon. Friend and namesake supporting this Amendment on the other, who wants, not a lifelong copyright, but one for ever and ever. There may be a theological reason for that view. If there is private property, it should not be taken away. Hon. Gentlemen opposite say, "No" and that after a period of about forty-five years when the absolute right has been cut down, we should accept the cut.

The truth of the matter is that copyright property is a difficult thing. It is something which the world feels must be shared, whether it is in a poem or a piece of music. In respect of this type of property the State must hold the balance between the author, the publishing company, and the public. If there is no compulsory licence system it tends to take

reproductions of works off the market. To limit the right of reproduction under compulsory licence to small records will mean that the trade will make no small records at all : people who cannot afford large records will not be able to get any records. It will be possible, by using this procedure, to prevent poorer persons from getting either small or long-playing records. Everything will be put upon long-playing records, so that there can be a monopoly, and there will be neither variety nor competition. Hon. Gentlemen opposite often proudly assert their interest in the lower income groups. They therefore should not support the Amendment.

8.15 p.m.

Photo of Mr Roger Cooke Mr Roger Cooke , Twickenham

The debate has revealed a measure of disquiet on the question of composers' fees but I was impressed by what the Parliamentary Secretary said about my Amendment and the difficulty of taking away the licence of right and the statutory fee. I was impressed by some of his arguments for maintaining the licence of right and although some feeling has been expressed against it, I beg to ask leave to withdraw my Amendment, in view of what he said.

Amendment, by leave, withdrawn.

Photo of Mr William Wells Mr William Wells , Walsall North

I beg to move, in page 12, line 12, at the end to insert : Provided that this subsection shall not apply to a record of a work or works if the playing time of the record exceeds eight minutes.

Question put, That those words be there inserted in the Bill :—

The House divided : Ayes 164, Noes 202.

Division No. 286.]AYES[8.16 p.m.
Ainsley, J. W.Carmichael, J.Edwards, W. J. (Stepney)
Allaun, Frank (Salford, E.)Champion, A. J.Evans, Albert (Islington, S. W.)
Allen, Arthur (Bosworth)Chetwynd, G. R.Evans, Stanley (Wednesbury)
Awbery, S. S.Clunie, J.Fernyhough, E.
Bacon, Miss AliceColdrick, W.Finch, H. J.
Balfour, A.Collick, P. H. (Birkenhead)Fletcher, Eric
Bence, C. R. (Dunbartonshire, E.)Collins, V. J. (Shoreditoh & Finsbury)Forman, J. C.
Benn, Hn. Wedgwood (Bristol, S. E.)Corbet, Mrs. FredaFraser, Thomas (Hamilton)
Beswick, F.Cove, W. G.Gibson, C. W.
Blackburn, F.Craddock, George (Bradford, S.)Gooch, E. G.
Boardman, H.Cullen, Mrs. A.Gordon Walker, Rt. Hon. P. C.
Bottomley, Rt. Hon. A. G.Dalton, Rt. Hon. H.Greenwood, Anthony
Bowden, H. W. (Leicester, S. W.)Davies, Ernest (Enfield, E.)Grenfell, Rt. Hon. D. R.
Bowles, F. G.Davies, Harold (Leek)Grey, C. F.
Brockway, A. F.Davies, Stephen (Merthyr)Griffiths, Rt. Hon. James (Llanelly)
Brown, Rt. Hon. George (Belper)Deer, G.Hale, Leslie
Brown, Thomas (Ince)de Freitas, GeoffreyHalt, Rt. Hn. Glenvil (Colne Valley)
Burke, W. A.Delargy, H. J.Hamilton, W. W.
Butler, Herbert (Hackney, C.)Dodds, N. N.Hannan, W.
Butler, Mrs. Joyce (Wood Green)Dugdale, Rt. Hn. John (W. Brmwch)Harrison, J. (Nottingham, N.)
Callaghan, L. J.Edwards, Rt. Hon. Ness (Caerphilly)Hastings, S.
Herbison, Miss M.Moody, A. S.Steele, T.
Hewitson, Capt. M.Morris, Percy (Swansea, W.)Stones, W. (Consett)
Howell, Denis (All Saints)Mort, D. L.Summerskill, Rt. Hon. E.
Hughes, Emrys (S. Ayrshire)Moss, R.Sylvester, G. O.
Hughes, Hector (Aberdeen, N.)Moyle, A.Taylor, Bernard (Mansfield)
Hunter, A. E.Noel-Baker, Rt. Hon. P. (Derby, S.)Taylor, John (West Lothian)
Hynd, J. B. (Attercliffe)Oliver, G. H.Thomson, George (Dundee, E.)
Irvine, A. J. (Edge Hill)Oram, A. E.Thornton, E.
Irving, S. (Dartford)Oswald, T.Timmons, J.
Isaacs, Rt. Hon. G. A.Owen, W. J.Turner-Samuels, M.
Janner, B.Padley, W. E.Viant, S. P.
Jeger, Mrs. Lena (Holbn & St. Pncs, S.)Paling, Rt. Hon. W. (Dearne Valley)Warbey, W. N.
Jones, J. Idwal (Wrexham)Pannell, Charles (Leeds, W.)Watkins, T. E.
Jones, T. W. (Merioneth)Pargiter, G. A.Weitzman, D.
Kenyon, C.Parkin, B. T.Wells, Percy (Faversham)
Key, Rt Hon. C. W.Pentland, N.Wells, William (Walsall, N.)
King, Dr. H. M.Plummer, Sir LeslieWest, D. G.
Lee, Frederick (Newton)Probert, A. R.Wheeldon, W. E.
Lever, Leslie (Ardwick)Proctor, W. T.White, Mrs. Eirene (E. Flint)
Lewis, ArthurPryde, D. J.White, Henry (Derbyshire, N. E.)
Lindgren, G. S.Randall, H. E.Wilkins, W. A.
Mabon, Dr. J. D.Rankin, JohnWilliams, Rev. Llywelyn (Ab'tillery)
MacColl, J. E.Redhead, E. C.Williams, Ronald (Wigan)
McGhee, H. G.Reid, WilliamWilliams, Rt. Hon. T. (Don Valley)
McInnes, J.Rhodes, H.Williams, W. R. (Openshaw)
McKay, John (Wallsend)Roberts, Albert (Normanton)Williams, W. T. (Barons Court)
McLeavy, FrankRoberts, Goronwy (Caernarvon)Willis, Eustace (Edinburgh, E.)
MacMillan, M. K. (Western Isles)Robinson, Kenneth (St. Pancras, N.)Winterbottom, Richard
Mahon, SimonRogers, George (Kensington, N.)Woodburn, Rt. Hon. A.
Mann, Mrs. JeanRoss, WilliamWoof, R. E.
Mason, RoyRoyle, C.Yates, V. (Ladywood)
Mellish, R. J.Shurmer, P. L. E.
Mikardo, IanSimmons, C. J. (Brierley Hill)TELLERS FOR THE AYES :
Mitchison, G. R.Slater, J. (Sedgefield)Mr. Holmes and Mr. Pearson.
Monslow, W.Sparks, J. A.
Aitken, W. T.Drayson, G. B.Irvine, Bryant Godman (Rye)
Allan, R. A. (Paddington, S.)du Cann, E. D. L.Jenkins, Robert (Dulwich)
Alport, C. J. M.Dugdale, Rt. Hn. Sir T. (Richmond)Jennings, J. C. (Burton)
Anstruther-Gray, Major Sir WilliamDuncan, Cap. J. A. L.Jennings, Sir Roland (Hallam)
Arbuthnot, JohnEmmet, Hon. Mrs. EvelynJohnson, Dr. Donald (Carlisle)
Armstrong, C. W.Fell, A.Johnson, Eric (Blackley)
Ashton, H.Fisher, NigelJoynson-Hicks, Hon. Sir Lancelot
Atkins, H. E.Fraser, Sir Ian (M'cmbe & Lonsdale)Keegan, D.
Baldwin, A. E.Freeth, D. K.Kerby, Capt. H. B.
Banks, Col. C.Galbraith, Hon. T. G. D.Kerr, H. W.
Barber, AnthonyGarner-Evans, E. H.Kimball, M.
Barlow, Sir JohnGeorge, J. C. (Pollok)Lagden, G. W.
Barter, JohnGlover, D.Lambert, Hon. G.
Baxter, Sir BeverleyGomme-Duncan, Col. Sir AlanLambton, Viscount
Beamish, Maj. TuftonGough, C. F. H.Leavey, J. A.
Bell, Philip (Bolton, E.)Gower, H. R.Leburn, W. G.
Bell, Ronald (Bucks, S.)Graham, Sir FergusLegge-Bourke, Maj. E. A. H.
Bennett, F. M. (Torquay)Grant, W. (Woodside)Legh, Hon. Peter (Petersfield)
Bevins, J. R. (Toxteth)Green, A.Lindsay, Hon. James (Devon, N.)
Bidgood, J. C.Gresham Cooke, R.Llewellyn, D. T.
Biggs-Davison, J. A.Grimston, Sir Robert (Westbury)Lloyd, Maj. Sir Guy (Renfrew, E.)
Birch, Rt. Hon. NigelGrosvenor, Lt.-Col. R. G.Lucas, Sir Jocelyn (Portsmouth, S.)
Bishop, F. P.Gurden, HaroldLucas-Tooth, Sir Hugh
Body, R. F.Hall, John (Wycombe)McAdden, S. J.
Bowen, E. R. (Cardigan)Hare, Rt. Hon. J. H.McCallum, Major Sir Duncan
Boyle, Sir EdwardHarris, Frederic (Croydon, N. W.)Macdonald, Sir Peter
Braine, B. R.Harrison, A. B. C. (Malden)Mackeson, Brig. Sir Harry
Braithwaite, Sir Albert (Harrow, W.)Harrison, Col. J. H. (Eye)McKibbin, A. J.
Bryan, P.Harvey, Air Cdre. A. V.(Macclesfd)Mackie, J. H. (Galloway)
Buchan-Hepburn, Rt. Hon. P. G. T.Harvey, John (Walthamstow, E.)McLaughlin, Mrs. P.
Bullus, Wing Commander E. E.Heald, Rt. Hon. Sir LionelMcLean, Neil (Inverness)
Channon, H.Heath, Rt. Hon. E. R. G.Macleod, Rt. Hn. Iain (Enfield, W.)
Chichester-Clark, R.Hesketh, R. F.MacLeod, John (Ross & Cromarty)
Clarke, Brig. Terence (Portsmth, W.)Hicks-Beach, Maj. W. W.Macmillan, Maurice (Halifax)
Cordeaux, Lt.-Col. J. K.Hill, Mrs. E. (Wythenshawe)Maddan, Martin
Craddock, Beresford (Spelthorne)Hirst, GeoffreyMaitland, Cdr. J. F. W. (Horncastle)
Crouch, R. F.Holland-Martin, C. J.Manningham-Buller, Rt. Hn. Sir R.
Crowder, Sir John (Finchley)Hornby, R. P.Markham, Major Sir Frank
Crowder, Petre (Ruislip—Northwood)Horobin, Sir IanMarshall, Douglas
Currie, G. B. H.Howard, Gerald (Cambridgeshire)Maude, Angus
Dance, J. C. G.Hudson, W. R. A. (Hull, N.)Medlicott, Sir Frank
D'Avigdor-Goldsmid, Sir HenryHulbert, Sir NormanMilligan, Rt. Hon. W. R.
Deedes, W. F.Hurd, A. R.Molson, Rt. Hon. Hugh
Digby, Simon WingfieldHutchison, Sir Ian Clark (E'b'gh W.)Monckton, Rt. Hon. Sir Walter
Donaldson, Cmdr. C. E. McA.Hylton-Foster, Sir H. B. H.Morrison, John (Salisbury)
Doughty, C. J. A.Mott-Radclyffe, C. E.
Nabarro, G. D. N.Schofield, Lt.-Col. W.Touche, Sir Gordon
Nairn, D. L. S.Scott-Miller, Cmdr. R.Turner, H. F. L.
Neave, AireySharples, R. C.Turton, Rt. Hon. R. H.
Nugent, G. R. H.Shepherd, WilliamTweedsmuir, Lady
O'Neill, Hn. Phelim (Co. Antrim, N.)Simon, J. E. S. (Middlesbrough, W.)Vane, W. M. F.
Osborne, C.Smithers, Peter (Winchster)Vaughan-Morgan, J. K.
Page, R. G.Spearman, Sir AlexanderVickers, Miss J. H.
Pannell, N. A. (Kirkdale)Speir, R. M.Wakefield, Edward (Derbyshire, W.)
Pilkington, Capt. R. A.Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)Walker-Smith, D. C.
Pitman, I. J.Steward, Harold (Stockport, S.)Ward, Hon. George (Worcester)
Pott, H. P.Storey, S.Ward, Dame Irene (Tynemouth)
Powell, J. EnochStuart, Rt. Hon. James (Moray)Waterhouse, Capt. Rt. Hon. C.
Price, David (Eastleigh)Studholme, Sir HenryWhitelaw, W. S. I. (Penrith & Border)
Profumo, J. D.Summers, Sir SpencerWilliams, Paul (Sunderland, S.)
Raikes, Sir VictorSumner, W. D. M. (Orpington)Wills, G. (Bridgwater)
Rawlison, PeterTaylor, William (Bradford, N.)Wilson, Geoffrey (Truro)
Ridsdale, J. E.Teeling, W.Wood, Hon. R.
Rippon, A. G. F.Thomas, Leslie (Canterbury)Woollam, John Victor
Roberts, Sir Peter (Heeley)Thomas, P. J. M. (Conway)Yates, William (The Wrekin)
Robinson, Sir Roland (Blackpool, S.)Thompson, Lt. Cdr. R. (Croydon, S.)
Roper, Sir HaroldThorneyeroft, Rt. Hon. P.TELLERS FOR THE NOES:
Ropner, Col. Sir LeonardThornton-Kemsley, C. N.Mr. Redmayne and
Russell, R. S.Tiley, A. (Bradford, W.)Mr. Hughes-Young.

Photo of Mr William Wells Mr William Wells , Walsall North

I beg to move, in page 12, line 25, to leave out "Board of Trade" and insert "owner of the copyright".

This Amendment in the name of my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) and myself is yet another attempt on our part to improve the machinery of Clause 8 and to introduce further safeguards in the interests of composers and those associated with composers in these activities. This Amendment and the following Amendment proposed in line 30, to leave out from "records" to the end of line 45 and insert: the owner of the copyright or any organisation representative of owners of copyright may apply to the Lord Chancellor who shall appoint an arbitrator pursuant to the Arbitration Act, 1950, to determine the rate or amount of royalty to be paid either generally or in relation to any one or more classes of records are designed to have the broad effect of substituting for the existing, rather cumbrous machinery of the Bill the short and simple remedy of allowing an author to go to arbitration if he feels himself aggrieved by the fees being fixed under the Clause being inadequate.

The Clause as it stands provides in subsection (3) that If after the end of the … year beginning with the coming into operation of this section it appears to the Board of Trade that the"— prescribed rate of fees which are fixed by Clause 8 (2) are inadequate— either generally or in relation to a particular class of records the Board may hold a public inquiry. The object of the Amendment is to substitute for the Board of Trade the owner of the copyright and to substitute for the procedure of the public inquiry the procedure of an arbitration.

There are two fundamental arguments in favour of the Amendments which we propose. The first is the very simple argument of equity that as we are interfering in this Clause with the rights of the composer it is really not a very just solution to leave it to a Government Department to decide whether, that interference having taken place, it is operating in an inequitable or unsatisfactory manner. The person who suffers the injustice is the owner of the copyright, not the Board of Trade, and it is in the hands of the owner of the copyright that, in our view, the remedy ought to rest.

That is the argument of simple equity, but there is also an argument of a machinery kind against the procedure established by the Bill as it stands and in favour of the procedure we suggest, namely, a resort to arbitration. If the Bill remained as now drafted the Board would hold its public inquiry, and after the inquiry it would come to its conclusion on the matter reported to it as a result of the inquiry. Finally there would be yet a third stage before any change would take place—any increase over the minimum rates fixed by subsection (2) of the Clause ; this House would have to intervene and an order would have to be made under this subsection.

8.30 p.m.

When we come, as we do here, to the question of the livelihood of authors, and whether a just kind of bargain is being reached in relation to records involving the use of the copyright of an author for the profit of the makers of the record, to have this complicated procedure of a public inquiry, no doubt a thorough examination of the results of that inquiry in the Board of Trade, and finally the matter having to come to be decided by a Resolution of this House, that, in our view, is such a cumbrous procedure as, in itself, to defeat the ends of justice.

In our view, the case for an Amendment of this kind is an overwhelming one, and we hope that the Government will feel able to accept it. But in any event we feel that the principles of justice so plainly demand in this Clause an alteration of this character that we shall feel bound, if the Parliamentary Secretary is not able to meet us, to press the matter to a Division.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

The Amendment which the hon. and learned Member for Walsall, North (Mr. W. Wells) has just moved seeks to replace the Board of Trade inquiry, and the consequential fixing of royalty rates after an affirmative Resolution of Parliament, by some arbitration proceedings. That is a principle, I may say, with which I have considerable instinctive sympathy, but I should, perhaps, just indicate certain defects in the formulation of the Amendment. I think this matters, because if Parliament were to give effect to this Amendment at this late stage, then, as I said on the previous Amendment, the nearer one gets to the end of the Bill the more important do these things become. I think I may say that in Standing Committee I was careful not to make merely drafting points on this complicated Measure. Nevertheless, for the sake of clarity I think that I should indicate what these defects are.

In the first place, the Amendment provides for applications for arbitration only by the copyright owner. It does not make provision for the time for which the determination would be valid. It makes no provision to prevent an overlap between different references to arbitration. Finally, line 28, in page 12 presupposes "an order under this subsection" but if, in point of fact, the amended subsection were given effect to there would not be an order at all. I mention those points because they would, of course, mean that the Amendment would not be very satisfactory, even if the principle were acceptable.

As I indicated a moment or two ago, I certainly feel a good deal of sympathy with the purpose of this Amendment, and I should be very happy indeed to be able conscientiously to relieve the Board of Trade of what is a burdensome, and normally, I would think, an invidious task. As the House will appreciate, that Department already has a good deal to do. Unfortunately, after giving a good deal of consideration to this matter, we have reluctantly come to the conclusion that it is not practical—and it would not be strictly constitutional—to take the course so persuasively commended by the hon. and learned Gentleman.

The House will appreciate that the royalty fixed is a statutory royalty. That being so, it follows that any variation of it is a legislative function, because to vary that which is laid down by Parliament is itself a legislative function. That is why the Board of Trade prepares the order only, but can make it only with the approval of Parliament. That is why there is this provision for the affirmative Resolution of Parliament. Therefore, it is not quite correct for the hon. and learned Gentleman to say that it is not right that the solution should be left with the Board of Trade. That would not be right, but, of course, that is not what the Bill provides for, because the Board's order only becomes effective on the approval of Parliament.

The basic and simple difficulty with the hon. and learned Gentleman's otherwise attractive solution is that it is not constitutionally appropriate in this country, with our Parliamentary system, for an arbitrator, however independent, expert and distinguished, to vary what Parliament has done in its legislative function.

Photo of Mr William Wells Mr William Wells , Walsall North

May I ask the hon. and learned Gentleman to clear up one point? He says that with the Bill as drafted, it is not for the Board of Trade to decide, but that it is for Parliament to decide. Surely, unless the Board of Trade decides that there is a case for making an order, the matter does not come within the purview of Parliament at all?

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

That, of course, is true. The initiating act has to be taken by the Board of Trade, but the executive or legislative act which brings about the order varying the royalty is one which can only be taken with the sanction and approval of Parliament.

I think I am entitled to remind the House—some hon. Members who participated in the proceedings will not need to be reminded—that when we were engaged in the Restrictive Trade Practices Act earlier in the Session, there were speeches from hon. Members opposite indicating the impropriety, in their view, of letting the legislative function of Parliament in any way be given to any form of judicial proceedings. The practical difficulty, as I see it, is this. Arbitration is a procedure for settling disputes of law or fact, or mixed law and fact, which arise between known parties who go to arbitration. It can only operate satisfactorily on that basis and within that framework.

But the fixing of statutory royalties and the licensing right procedure is not a matter of dispute, either of law or of fact. Not only that, but the award is bound to affect a great many people. Those people who are affected by an order fixing royalty rates can, under our procedure, appear and put their point of view at a public inquiry, but they would not, of course, have any status at an arbitration inter partes so to do.

There is the further point, that I can see a danger in this arbitration procedure in that one unrepresentative composer, possibly a man of straw, could be put up and his case would prejudice a great many other composers who would not have had an opportunity to put their case in the arbitration.

I have, of course, on seeing this Amendment, made such search as I have been able, with the assistance that I have, to see if there are any valid precedents for taking the course suggested by the hon. and learned Gentleman, which, as I say, appeals to me. I have not, unfortunately, been able to find any valid precedent. The nearest one, which is an unsatisfactory one, is Section 5 of the Prices of Goods Act, 1939. That suffers from a triple disadvantage. In the first place, it was emergency legislation, which is a bad guide to normal legislation. Secondly, it had to contain very elaborate provisions to make the scheme workable at all, and, thirdly, and not least, even with that, it was never put into practice. That is not a very encouraging precedent.

The next nearest precedent which I could find is one which will be familiar to the hon. and learned Gentleman, namely the Transport Tribunal. But that is not a very good precedent for the arbitration side of the matter because the Transport Tribunal operates by means of a public inquiry, as we propose to do here. It follows from that that it is not possible to remove this duty from the Board of Trade and pass it to the arbitrator, as I personally would be glad to do if it were constitutionally proper and practical.

Nevertheless, although we must ask the House for the retention by the Board of this jurisdiction, I can reassure the hon. and learned Gentleman the Member for Walsall, North to this extent, since he did raise this point, which I accept, about nothing being initiated except by the action of the Board of Trade, that the Board of Trade will always be ready to hold a public inquiry within the appropriate statutory time limits if there is a reasonable prima facie case made out by applicants for such an inquiry to be held with a view to refixing of rates.

In regard to the conduct of the inquiries, we are certainly very much open to any suggestions for improving their procedure. In that, as in all these sorts of public inquiries and administrative proceedings, we are hoping to benefit by the Report and recommendations of the Oliver Franks Committee on Administrative Tribunals and Inquiries, when that appears.

In the circumstances, I hope that the House will think that that is the best we can do to meet the point raised, and that it will not be necessary for this Amendment to be pressed to a Division.

Mr. M. Tamer-Samuels:

I do not for the life of me know why the Parliamentary Secretary is adopting such a rigid attitude about this matter. Here we have a contest about the method or medium through which, when it appears that the rate of royalty has become inequitable, it may be determined whether that is correct or not. The dispute is as to whether the right machinery is a public inquiry or the determination by an arbitrator appointed by the Lord Chancellor.

I listened to the argument of the Parliamentary Secretary with great care and great interest. It seemed to me—and this is why I used the expression "rigid attitude"—that he was wedded to the idea that since a certain type of machinery had been used hitherto or is used in other connections, it was therefore appropriate that it should be slavishly followed on this occasion when an alteration in the procedure might be very desirable and publicly profitable. In my view, the proposals of my hon. and learned Friend are much to be preferred to the contentions advanced by the Parliamentary Secretary in favour of the public inquiry.

The Parliamentary Secretary has said that, in the circumstances, it might be possible before an arbitrator to present to the tribunal a man of straw. I cannot see why the same attempt could not be made at a public inquiry. Indeed, my experience of public inquiries leads me to think that one might with much greater facility attempt to present a man of straw before such tribunals than before judicial arbitrators, experienced in mode of procedure, appointed by the Lord Chancellor.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

Perhaps it might save time if I were just to tell the hon. and learned Gentleman the Member for Gloucester (Mr. Turner-Samuels) what I think is the answer to that. A public inquiry is public in the sense that all interested parties attend, so if one man of straw attended it would not commit the others. Before an arbitrator, the man of straw might be the only applicant, and what was decided in the absence of the others would constitute an adverse precedent in their case.

8.45 p.m.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

If a man of straw was to be the central figure in this dramatis personœ which was to come before this public inquiry, I think that he would be the first person to be presented under whatever guise this inquiry, judicial or public, took place. Really all that the intervention of the Parliamentary Secretary does is to accentuate the weakness of the case which he is endeavouring to put forward.

The Parliamentary Secretary said, again trying to draw away from the weakness of his position, that here we did not have a question of law. It may be, of course, true that in the strict sense there is no question of legal definition to be decided here, but where we have an issue in which it is a question of whether a state of things is equitable or not, the Parliamentary Secretary, who is no undistinguished lawyer himself, knows very well that we get involved at once in legal principles of the highest order. Therefore, it is ploughing the sands for the Parliamentary Secretary to submit an argument of that kind not merely to other lawyers on this side of the House but to all Members of Parliament of common sense who are sitting here and who are not lawyers.

What is more important in this matter is that the mind which is concentrating on the inquiry should be a judicial mind. This is, as I have said before, a consideration of whether a royalty is equitable or not. It is a matter which concerns not only the author but the public. It is a matter which has to be weighed in the balance very carefully and thoroughly because, although it is quite true that the property which comes from the brain of the author is of the greatest value to the author, nevertheless, the balance has to be held in regard to the public ; because, first, if it were not for the public the production of the author would not be worth anything at all, and, secondly, the production of the author, if it is worth anything at all, is worth something because of its divertissement or its educational value or whatever other value it may have. Therefore, it is right that it should be shared by the public. We then get an issue of a very important character to which there should be applied a judicial mind in order to see that justice is thoroughly done and in order to bring about this equitable situation which is contended not to exist in regard to the particular royalty in question.

The Parliamentary Secretary, in his wisdom, has also said that the arbitrator before whom the person would come would have no status. Really that is cutting it very fine. It seemed to me, as I listened to that, that it was not a question of a man of straw but of the last straw. There was a case here, or perhaps no case here, that was so devoid of argument that the hon. and learned Gentleman, who is not unresourceful, found himself in the deepest and most profound difficulty to try to make sense out of it. Therefore, to say that the person who comes before an arbitrator appointed by the Lord Chancellor has no status is, to put it kindly, for the Parliamentary Secretary to speak with his tongue in his cheek.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

What I actually said was that the people who did not come before the arbitrator might be affected by a decision taken in their absence.

Photo of Mr Moss Turner-Samuels Mr Moss Turner-Samuels , Gloucester

This is a two-way traffic, and the Parliamentary Secretary can have it either way. We are not concerned with the people who do not come before the arbitrator; we are concerned with the people who want to come before the arbitrator, who feel that they have a case and a cause and some just reason for coming before him. Such people would have just as much status if they came before an arbitrator as they would if they came before a public inquiry, and. equally, as little status if they did not come before the arbitrator as they would have if they did not come before the public inquiry. The thing as put by the Parliamentary Secretary adds up to absolute nonsense, and nobody knows it better than the Parliamentary Secretary. I can almost hear him whispering that to himself.

The House is now called upon to decide what ought to be done in the matter. It is presented with the choice of what is in the Bill—that there should be a public inquiry—or of what is in the Amendment of my hon. Friends, which is that there should be an arbitrator appointed by the Lord Chancellor. It is not a matter of little importance whether there is a public inquiry or an arbitrator. I concede, of course, at once that which, ever method is adopted the matter certainly going to be considered, but that is not the question. The question is which is the best method in the interests of the public as well as of the author.

On the one hand, we have a public inquiry which, of course, is very suitable for matters such as concern local government. On the other hand, we have a plain issue between an individual and the public. Ordinarily, the public has the advantage of dealing with similar matters in the courts by the appropriate procedure which, of course, is very well known to the Parliamentary Secretary.

The procedure suggested by the Amendment is cheaper, quicker and easier than that of going to the courts or to a public inquiry. The effect of the Amendment would be to get an arbitrator appointed without delay who will be solely concerned with a specific issue of the royalties of a particular author in relation to the amount of those royalties and the interests of the community. In these circumstances, I ask the House not to allow itself to be pushed into the situation into which the Parliamentary Secretary is trying to push it, but to say without any doubt what is almost too obvious for words that there is no comparison between what is proposed in the Bill and what the Amendment says should be in it, and what I hope, will be in it if my hon. Friend's Amendment is accepted.

Photo of Mr Anthony Greenwood Mr Anthony Greenwood , Rossendale

I am greatly reassured to have had the support of two of my hon. and learned Friends for the Amendment which stands in my name. What my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) has said has confirmed my own impression that perhaps the Parliamentary Secretary is ill-advised upon this issue.

I agree with the first part of what the Parliamentary Secretary said when he analysed the purpose of our Amendment. We are proposing to substitute for the Board of Trade inquiry a system of arbitration. He expressed great sympathy with the principle of arbitration and then said that at this stage it was very difficult to make an Amendment. I am sorry that when we have had so much time to consider this, the Parliamentary Secretary, with the great sympathy he felt for the principle, did not find it possible in Committee to lay the matter before us for our consideration. It is because we have become increasingly uneasy about the operation of the Clause that we have tabled, on Report, the Amendment in my name.

We think that arbitration is preferable to the Board of Trade inquiry, because we believe in the first place that the Board of Trade inquiry will be extremely slow. First, the Board of Trade has to decide to order that an inquiry shall be held. It orders an inquiry. The next stage is that the inquiry is held. The third is that the President of the Board of Trade considers the report of the inquiry, and the fourth is that, in the light of that report, the President will lay an Affirmative Resolution before the House. That will be an extremely long and cumbersome process.

The Parliamentary Secretary said that the royalty which is to be fixed will be a statutory royalty which can be altered only by Parliament. I think that the hon. and learned Member is missing some of the finer points involved. In the first place, what will happen if the Board of Trade refuses to hold an inquiry? It is surely most desirable that if anybody is feeling a sense of injustice there should be some course of action open to him, even if the Board of Trade does not feel that that is the proper course at any particular time.

In how many cases will we in the House be able to judge whether the President has come to the right conclusion? If we had some arbitration machinery which would enable all the relevant interests to be represented and to make representations to the President of the Board of Trade, it would make things much easier for the House in coming to a conclusion. I think that the Parliamentary Secretary is wrong in saying that the arbitration machinery would be dealing only with the question of royalty. Although that is its fundamental purpose there might well be a dispute whether a record or a class of records came within a category of records for royalty purposes or not. I should have thought that some specialist arbitration machinery would have been extremely valuable in those circumstances.

The Parliamentary Secretary said that one of the difficulties about our proposal would be that one person appearing before the arbitrator might well prejudice the case of other people in the same class. It is very solicitous of the Parliamentary Secretary to feel that on behalf of copyright owners, but I think that he would be the first to agree that copyright owners as a whole are not badly organised and that they tend to know what various members of their community are doing. I do not think that the Parliamentary Secretary need be too apprehensive about what would happen. Most of them would be prepared to act through the extremely efficient organisation that they have. I do not think that there would be a serious danger of the claims of one prejudicing the claims of another, and it would be perfectly open to the President of the Board of Trade, when a request for arbitration was made, to acquaint the various organisations representing the copyright owners.

All of us want to make progress with the Bill. There is, especially among composers, a great deal of unhappiness about the effect of the Clause. What we are really doing is saying that Parliament shall have the right to fix a minimum remuneration for a whole class of our fellow-citizens. When we are doing that, it is desirable that we should introduce any safeguard which it is open to us to introduce; and if we could provide for this system of arbitration I think that it would greatly reassure composers. Although the Government have not done very much to meet the wishes of this side of the House in the course of the progress of the Bill through the House and in Committee, I hope that they will be able to say that they will consider the issue of arbitration; otherwise, on this issue too, we shall find it necessary to divide the House.

9.0 p.m.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

With the leave of the House, Sir, I will respond shortly to that invitation. I cannot, I think, serve any useful purpose by spelling out again the difficulties and obstacles standing in the way of accepting a solution by arbitration. I have said already that, were it possible, I would find it an attractive solution for many reasons, but both constitutionally and in practice I am satisfied that it could not be incorporated into this procedure.

At the same time I should not like the composers to feel that there is any inherent disadvantage to which they would be exposed under this provision. I am sure that under the sanctions of Parliament it will work equitably. It may not work very quickly, but neither would arbitration procedure, because one of the difficulties about hearing the whole of this matter is that it takes a considerable amount of time.

Nor would I like it to be thought that there would be any reluctance on the part of the Board of Trade, if there is any prima facie case for an inquiry, to institute such an inquiry and to hold it as expeditiously, as fully and as fairly as possible.

Question put, That the words "Board of Trade" stand part of the Bill:—

The House divided: Ayes 200, Noes 158.

Division No. 287.]AYES[9.2 p.m.
Aitken, W. T.Hare, Rt. Hon. J. H.Noble, Comdr. A. H. P.
Allan, R. A. (Paddington, S.)Harris, Frederic (Croydon, N. W.)Nugent, G. R. H.
Alport, C. J. M.Harrison, A. B. C. (Maldon)O'Neill, Hn. Phelim (Co. Antrim, N.)
Anstruther-Gray, Major Sir WilliamHarrison, Col. J. H. (Eye)Osborne, C.
Arbuthnot, JohnHarvey, Air Cdre. A. V. (Macclesfd)Page, R. G.
Armstrong, C. W.Harvey, John (Walthamstow, E.)Pannell, N. A. (Kirkdale)
Ashton, H.Heald, Rt. Hon. Sir LionelPartridge, E.
Atkins, H. E.Heath, Rt. Hon. E. R. G.Pilkington, Capt. R. A.
Baldwn, A. E.Hesketh, R. F.Pitman, I. J.
Banks, Col. C.Hicks-Beach, Maj. W. W.Pott, H. P.
Barlow, Sir JohnHill, Mrs. E. (Wythenshawe)Powell, J, Enoch
Barter, JohnHirst, GeoffreyProfumo, J. D.
Baxter, Sir BeverleyHolland-Martin, C. J.Raikes, Sir Victor
Beamish, Maj. TuftonHornby, R. P.Rawlinson, Peter
Bell, Philip (Bolton, E.)Horobin, Sir IanRedmayne, M.
Bell, Ronald (Bucks, S.)Howard, Gerald (Cambridgeshire)Rees-Davies, W. R.
Bennett, F. M. (Torquay)Hudson, W. R. A. (Hull, N.)Ridsdale, J. E.
Bevins, J. R. (Toxteth)Hughes-Young, M. H. C.Rippon, A. G. F.
Bidgood, J. C.Hulbert, Sir NormanRoberts, Sir Peter (Heeley)
Biggs-Davison, J. A.Hutchison, Sir Ian Clark (E'b'gh, W.)Robertson, Sir David
Birch, Rt. Hon. NigelHylton-Foster, Sir H. B. H.Robinson, Sir Roland (Blackpool, S.)
Bishop, F. P.Irvine, Bryant Codman (Rye)Roper, Sir Harold
Body, R. F.Jenkins, Robert (Dulwich)Ropner, Col. Sir Leonard
Bowen, E. R. (Cardigan)Jennings, J. C. (Burton)Russell, R. S.
Boyle, Sir EdwardJennings, Sir Roland (Hallam)Schofield, Lt.-Col. W.
Braine, B. R.Johnson, Or. Donald (Carlisle)Scott-Miller, Cmdr. R.
Braithwaite, Sir Albert (Harrow, W.)Johnson, Eric (Blackley)Sharples, R. C.
Buchan-Hepburn, Rt. Hon. P. G. T.Joynson-Hicks, Hon. Sir LancelotShepherd, William
Bullus, Wing Commander E. E.Keegan, D.Simon, J. E. S. (Middlesbrough, W.)
Channon, H.Kerby, Capt. H. B.Smithers, Peter (Winchester)
Chichester-Clark, R.Kerr, H. W.Spearman, Sir Alexander
Clarke, Brig. Terence (Portsmth, W.)Kimball, M.Speir, R. M.
Cordeaux, Lt.-Col. J. K.Lagden, G. W.Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)
Craddock, Beresford (Spelthorne)Lambert, Hon. G.Steward, Harold (Stockport, S.)
Crouch, R. F.Lambton, ViscountStorey, S.
Crowder, Sir John (Finchley)Leavey, J. A.Stuart, Rt. Hon. James (Moray)
Crowder, Petre (Rulslip—Northwood)Leburn, W. G.Studholme, Sir Henry
Currie, G. B. H.Legge-Bourke, Maj. E. A. H.Summers, Sir Spencer
Dance, J. C. G.Legh, Hon. Peter (Petersfield)Sumner, W. D. M. (Orpington)
D'Avigdor-Goldsmid, Sir HenryLennox-Boyd, Rt. Hon. A. T.Taylor, William (Bradford, N.)
Deedes, W. F.Lindsay, Hon. James (Devon, N.)Teeling, W.
Digby, Simon WingfieldLloyd, Maj. Sir Guy (Renfrew, E.)Thomas, Leslie (Canterbury)
Donaldson, Cmdr. C. E. McA.Lucas, Sir Jocelyn (Portsmouth, S.)Thomas, P. J. M. (Conway)
Doughty, C. J. A.Lucas-Tooth, Sir HughThompson, Lt.-Cdr. R. (Croydon, S.)
du Cann, E. D. L.McCallum, Major Sir DuncanThorneycroft, Rt. Hon. P.
Dugdale, Rt. Hn. Sir T. (Richmond)Macdonald, Sir PeterThornton-Kemsley, C. N.
Duncan, Capt. J. A. L.Mackeson, Brig. Sir HarryTiley, A. (Bradford, W.)
Emmet, Hon. Mrs. EvelynMcKibbin, A. J.Touche, Sir Gordon
Fell, A.Mackie, J. H. (Galloway)Turner, H. F. L.
Fisher, NigelMcLaughlin, Mrs. P.Turton, Rt. Hon. R. H.
Fraser, Sir Ian (M'cmbe & Lonsdale)McLean, Neil (Inverness)Tweedsmuir, Lady
Freeth, D. K.Macleod, Rt. Hn. Iain (Enfield, W.)Vane, W. M. F.
Galbraith, Hon. T. G. D.MacLeod, John (Ross & Cromarty)Vaughan-Morgan, J. K.
Garner-Evans, E. H.Macmillan, Maurice (Halifax)Vickers, Miss J. H.
George, J. C. (Pollok)Maddan, MartinVosper. D. F.
Glover, D.Maitland, Cdr. J. F. W. (Horncastle)Wakefield, Edward (Derbyshire, W.)
Gomme-Duncan, Col. Sir AlanMarkham, Major Sir FrankWalker-Smith, D. C.
Gough, C. F. H.Marshall, DouglasWard, Hon. George (Worcester)
Gower, H. R.Maude, AngusWard, Dame Irene (Tynemouth)
Graham, Sir FergusMedlicott, Sir FrankWaterhouse, Capt. Rt. Hon. C.
Grant, W. (Woodside)Milligan, Rt. Hon. W. R.Whitelaw, W. S. I. (Penrith & Border)
Green, A.Molson, Rt. Hon. HughWilliams, Paul (Sunderland, S.)
Gresham Cooke, R.Morrison, John (Salisbury)Wills, G. (Bridgwater)
Grimston, Sir Robert (Westbury)Mott-Radclyffe, C. E.Wilson, Geoffrey (Truro)
Grosvenor, Lt.-Col. R. G.Nabarro, G. D. N.Woollam, John Victor
Gurden, HaroldNairn, D. L. S.Yates, William (The Wrekin)
Hall, John (Wycombe)Neave, AireyTELLERS FOR THE AYES:
Mr. Barber and Mr. Bryan.
Ainsley, J. W.Bence, C. R. (Dunbartonshire, E.)Bowles, F. G.
Allaun, Frank (Salford, E.)Benn, Hn. Wedgwood (Bristol, S. E.)Brookway, A. F.
Allen, Arthur (Bosworth)Beswick, F.Brown, Rt. Hon. George (Belper)
Awbery, S. S.Blackburn, F.Brown, Thomas (Ince)
Bacon, Miss AliceBottomley, Rt. Hon. A. G.Burke, W. A.
Balfour, A.Bowden, H. W. (Leicester, S. W.)Butler, Herbert (Hackney, C.)
Butler, Mrs. Joyce (Wood Green)Hynd, J. B. (Attercllffe)Redhead, E. C.
Carmichael, J.Irvine, A. J. (Edge Hill)Raid, William
Champion, A. J.Irving, S. (Dartford)Rhodes, H.
Chetwynd, G. R.Janner, B.Robens, Rt. Hon. A.
Clunie, J.Jeger, Mrs. Lena (Holbn & St. Pncs, S.)Roberts, Albert (Normanton)
Coldrick, W.Jones, J. Idwal (Wrexham)Roberts, Goronwy (Caernarvon)
Collick, P. H. (Birkenhead)Jones, T. W. (Merioneth)Robinson, Kenneth (St. Pancras, N.)
Collins, V. J. (Shoreditch & Finsbury)Kenyon, C.Rogers, George (Kensington, N.)
Corbet, Mrs. FredaKey, Rt. Hon. C. W.Royle, C.
Cove, W. G.King, Dr. H. M.Ross, William
Craddock, George (Bradford, S.)Lee, Frederick (Newton)Shurmer, P. L. E.
Cullen, Mrs. A.Lever, Leslie (Ardwick)Slater, J. (Sedgefield)
Dalton, Rt. Hon. H.Lewis, ArthurSparks, J. A.
Davies, Ernest (Enfield, E.)Lindgren, G. S.Steele, T.
Davies, Harold (Leek)Mabon, Dr. J. DicksonStones, W. (Consett)
Davies, Stephen (Merthyr)MacColl, J. E.Summerskill, Rt. Hon. E.
Deer, G.McGhee, H. G.Sylvester, G. O.
de Freitas, GeoffreyMcInnes, J.Taylor, Bernard (Mansfield)
Delargy, H. J.McKay, John (Wallsend)Taylor, John (West Lothian)
Dodds, N. N.McLeavy, FrankThomson, George (Dundee, E.)
Edwards, W. J. (Stepney)MacMillan, M. K. (Western Isles)Thornton, E.
Evans, Albert (Islington, S. W.)Mahon, SimonTimmons, J.
Evans, Stanley (Wednesbury)Mann, Mrs. JeanTurner-Samuels, M.
Fernyhough, E.Mason, RoyViant, S. P.
Finch, H. J.Mellish, R. J.Warbey, W. N.
Fletcher, EricMitchiscn, G. R.Watkins, T. E.
Forman, J. C.Monslow, W.Weitzman, D.
Fraser, Thomas (Hamilton)Moody, A. S.Wells, Percy (Faversham)
Gibson, C. W.Morris, Percy (Swansea, W.)Wells, William (Walsall, N.)
Gordon Walker, Rt. Hon. P. C.Mort, D. L.West, D. G.
Greenwood, AnthonyMoss, R.Wheeldon, W. E.
Grenfell, Rt. Hon. D. R.Moyle, A.White, Mrs. Eirene (E. Flint)
Grey, C. F.Oliver, G. H.White, Henry (Derbyshire. N. E.)
Griffiths, Rt. Hon. James (Llanelly)Oram, A. E.Wilkins, W. A.
Hale, LeslieOswald, T.Williams, Rev. Llywelyn (Ab'tillery)
Hall, Rt. Hn. Glenvil (Colne Valley)Owen, W. J.Williams, Ronald (Wigan)
Hamilton, W. W.Padley, W. E.Williams, Rt. Hon. T. (Don Valley)
Hannan, W.Paling, Rt. Hon. W. (Dearne Valley)Williams, W. R. (Openshaw)
Harrison, J. (Nottingham, N.)Pannell, Charles (Leeds, W.)Williams, W. T. (Barons Court)
Hastings, S.Pargiter, G. A.Willis, Eustace (Edinburgh, E.)
Herbison, Miss M.Parkin, B. T.Winterbottom, Richard
Hewitson, Capt. M.Pentland, N.Woodburn, Rt. Hon. A.
Hobson, C. R.Plummer, Sir LeslieWoof, R. E.
Holmes, HoraceProbert, A. R.Yates, V. (Ladywood)
Howell, Denis (All Saints)Proctor, W. T.
Hughes, Emrys (S. Ayrshire)Pryde, D. J.TELLERS FOR THE NOES:
Hughes, Hector (Aberdeen, N.)Randall, H. E.Mr. Pearson and Mr. Simmons.
Hunter, A. E.Rankin, John

Question put and agreed to.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

I beg to move, in page 12, line 42, to leave out from beginning to "was" in line 45 and to insert: (b) where an order comprising a class of records (that is to say, either a general order or an order relating specifically to that class, or to that class together with one or more other classes of records) has been made under this subsection, no further order comprising that class of records shall be made thereunder less than five years after the date on which the previous order comprising that class (or, if more than one, the last previous order comprising that class). This is in effect a drafting Amendment, clarifying the position of music published before 1st July, 1912. Subsections (5) and (9) inadvertently went beyond the 1911 Act, which was not intended. The Amendment simply puts the position right.

Amendment agreed to.

Photo of Mr Derek Walker-Smith Mr Derek Walker-Smith , Hertfordshire East

I beg to move in page 14, line 26, at the end, to insert: Provided that this subsection shall not extend the operation of subsection (5) of this section to a record in respect of which the condition specified in paragraph (b) of that subsection is not fulfilled, unless the words comprised in the record (as well as the musical work) were published before the first day of July, nineteen hundred and twelve, and were so published as words to be sung to, or spoken incidentally to or in association with, the music. This is a drafting Amendment.

Amendment agreed to.