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Dáil Éireann debate -
Wednesday, 27 Feb 1963

Vol. 200 No. 3

Copyright Bill, 1962—Report and Final Stages.

Before I move amendment No. 1, may I refer to two matters I undertook to consider because Deputies raised them on Committee Stage? Is it in order to do it now or shall I do it afterwards?

Go through the amendments first.

I think the Minister should move the amendments first.

I move amendment No. 1:—

In page 15, to delete lines 33 to 35 and to insert the following paragraph:

"(b) the manufacturer pays to the owner of the copyright a sum on account of the amount of the royalty equal to five per cent. of the ordinary retail selling price of the record in respect of which the royalty is payable and gives to such owner an undertaking to pay to him the amount of the royalty determined under the said section 31 less the sum aforesaid and such owner gives to the manufacturer an undertaking to repay to the manufacturer the amount (if any) by which the sum aforesaid exceeds the amount of the royalty determined under the said section 31."

This amendment is to meet a point raised by Deputy Colley. He referred to recordings of musical and other works that had already been made, or adaptations of recordings, and to the fact that in the case of royalties payable in respect of the making of these recordings, no minimum sum was laid down. I suggested in the course of the Committee Stage that a minimum sum or percentage was not necessary, that that was a matter that could be arranged between the person who owned the copyright and the person who made the recording, but, in deference to the argument made by Deputy Colley, I have decided to introduce a minimum of five per cent failing agreement or pending agreement between the parties. I think this amendment meets the points raised by the Deputy.

Might I inquire from the Minister whether there is a similar limitation in Part V on the charges which may be made? I referred on Committee Stage to the fact that in recent years the Performing Rights Society had very substantially raised their charges and, as I understand it, there is power under Part V of the Bill. When we were discussing this matter an Committee Stage, it was in relation to this section, Section 13, and the Minister undertook to bring in the amendment which has now been introduced, which limits the amount of the royalty to five per cent. Can I find out whether there is any limitation or any prescribed maximum charge which may be made in respect of, say, matters that fall within Part V of the Bill?

The five per cent refers only to a recording right. I think the point raised by Deputy Cosgrave on Committee Stage referred to charges by the Performing Rights Society under a scheme of charges proposed by them. I explained on that occasion that such a scheme was capable of submission by aggrieved parties, that if there were a group of dancehall owners or other people who were aggrieved, they could submit the scheme for adjudication by the Controller, but the five per cent does not apply to what the Deputy has in mind.

Amendment agreed to.

I move amendment No. 2:

In page 22, lines 28 to 30, to delete all words after "published" to the end of the subsection.

In the Bill as it now stands, following amendment in Committee, with regard to the date from which the copyright of a film or cinematograph work runs, a doubt has arisen as to whether the section as it now reads would conform with the requirements of international Conventions to which Ireland is a party. The purpose of the amendment is to delete certain words after the word "published" so as to ensure that the date of publication from which the copyright will run will conform to the accepted interpretation in international Conventions to which we are party.

That is, I understand, to say that the owner of the copyright could in fact in certain circumstances lengthen the time of copyright?

That is right.

Amendment agreed to.

I move amendment No. 3:

In page 23, line 25, before "the public" to insert ", or for showing by any means to,".

This is consequential on amendment No. 2.

Amendment agreed to.

I move amendment No. 4:

In page 46, lines 35 to 51 and in page 47, lines 1 to 3, to delete section 48 and to insert the following section:

"(1) Where the owner of the copyright in any literary, dramatic, musical or artistic work authorises a person to incorporate the work in a cinematograph film and Radio Éireann broadcasts the film, such broadcast shall not, in the absence of any agreement to the contrary, infringe such copyright.

(2) Where Radio Éireann broadcasts a cinematograph film in which a musical work is incorporated, the owner of the right to broadcast the work shall be entitled to receive an equitable remuneration from Radio Éireann."

I think Deputy Costello raised some point on this section on the Committee Stage. I have considered its provisions, and the amendment now proposes to give the section a much more limited application. In fact, it relates only to films which Radio Éireann may broadcast. The section with the proposed amendment sets up a presumption that in the absence of an agreement to the contrary, such a showing will not infringe copyright in any work that has been incorporated in the film which the Authority has the copyright owner's permission to show. I do not think I need explain it further if Deputy Costello is satisfied.

Undoubtedly the section is considerably improved by the proposed amendment but I am wondering why we are putting Radio Éireann in a particularly privileged position. Is there any good reason for it?

First of all, they are our only broadcasting service. Secondly, if somebody extracts a musical piece that forms part of another work and plays it somewhere in the State, it might not be easy to catch up with him, but so far as Radio Éireann are concerned, they are a good mark and their actions are well known. Everybody knows what they are doing from time to time. It is for these reasons that we pick Radio Éireann out.

Amendment agreed to.

I move amendment No. 5:

In page 49, line 4, after "public" to insert "or to be transmitted to subscribers to a diffusion service".

On Committee Stage, I introduced an amendment to cover what we call a diffusion service, and I should also have moved an amendment such as this which is, in effect, a consequential amendment dealing with a diffusion service in prior sections.

Does this apply where a broadcast is relayed?

Yes, relayed in a building or outside.

Amendment agreed to.

I move amendment No. 6:

In page 52, line 18, after "place" to insert "in the presence of persons who have paid for admission to the performance".

On Committee Stage, I introduced amendment at the instance of playwrights, the purpose being to ensure that a register of performances of dramatic works would be kept in places throughout the country in which they were performed so that playwrights would have the opportunity of ensuring that proper royalties were paid. The purpose of this amendment is to require that those registers should be kept only where the plays are performed opposite audiences who pay, the main purpose being again to free Radio Éireann from this obligation. Without excluding Radio Éireann, they would have to keep a register of performances of those dramatic works performed in their theatres and studios which would be subsequentially performed anyway on the television screen or on sound broadcasting. I do not think it was ever intended that we should impose on Radio Éireann the obligation to keep a register of this nature, nor did the playwrights seek it.

Would dramatic works include musical works?

I suppose if there were a musical content in a dramatic work, but it was mainly to protect playwrights in this country from breaches of copyright of their works in country halls.

I understand the object of the amendment is not to require Radio Éireann to keep this register. That may be a laudable amendment but I wonder is the effect of it to go any further. Does the Minister consider that by this amendment this register of dramatic works might not have to be kept if in fact it was alleged that the performance was not a performance for which an admission price was being paid? Would it not be preferable, in order to remove all doubts, to refer specifically to the case of Radio Éireann as we did in an earlier section to make clear that the section will oblige persons to keep this register?

Normally speaking, copyright is preserved only to ensure that the composers of the work or the owners of the copyright will be paid a reasonable sum for the use of the work. There are many occasions when the work is played opposite non-paying audiences, for example, in schools or for other purposes of that character. I specifically mentioned Radio Éireann in this context only as an example of proprietors of schools and other such places who would be obliged otherwise, where no charge was being made for performances, to keep a register and there would be no object in doing so.

Has the Minister considered the position of theatre clubs, where it might be alleged that there was no charge in respect of the performance, and that the membership fee to the club might have covered admission to the work?

It does not relieve such people of the obligation to pay royalty, but I am giving in the amendment I propose, what the playwrights asked me for.

I think the section is a fair and good one, but I was rather wondering whether in fact the proposed amendment was perhaps going to extend beyond its intention to certain circumstances where persons might be organising a theatre club and might find that whilst they would be under a responsibility to pay the copyright fees, they would be under no obligation to keep the register required by the section.

Amendment agreed to.

I move amendment No. 7:

In page 52, line 27, to delete "regulations" and to insert "rules".

This is a drafting change to give uniformity of wording throughout the Bill.

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I might at this stage perhaps deal with other points raised in respect of which I have not introduced amendments but I will be able to satisfy Deputies who raised them, I hope, that amendments are not necessary.

Deputy Sweetman raised the question whether the definition of a photograph given in the Bill was sufficient to include a negative, which forms part of the photographic process. I have had the definition examined and, as the House is aware, it is in the widest possible terms, namely, any product of photography or any process akin to photography, and I am assured that that includes the word "negative" without any question of doubt. That, I think, should satisfy Deputy Sweetman.

The other point raised was in relation to ephemeral recordings. I think it was Deputy Cosgrave who raised this matter; he suggested that Radio Éireann, in fair dealing with recordings of literary, dramatic, musical and artistic works, should be obliged to keep the composers, and other people like that, informed of the making and the destruction of these ephemeral recordings. I have looked into the suggestion and, in all the circumstances, it would, I think, impose a rather unnecessary burden on Radio Éireann. In the first instance, Radio Éireann would require a period of six months within which to be relieved of the obligations, which they would incur for infringement of copyright without the protection given here. Six months is a reasonable period in which to be allowed to keep these recordings without being responsible for infringement of copyright. They become responsible, of course, for payment of royalties when they produce these recordings on the screen or in their ordinary broadcasts. As a rule, it is the practice of Radio Éireann to publish their programmes in advance but, even where they cannot do that, the performances will be widely known throughout the country and there would be no danger that Radio Éireann would want to escape the consequences of their performing these works from the point of view of paying proper royalties; everybody would know they had played these and, in the circumstances, I have decided that the fair dealing in these matters provided for already in Sections 12 and 14 is sufficient.

Deputy Declan Costello raised a point in regard to appeals. In the case of appeals in Britain, in certain circumstances appeals are made to a three-man tribunal whereas, under this Bill, we provide only for appeal to the Controller. The reason advanced by Deputy Costello was that a single person, irrespective of who he might be, might establish a precedent for himself or might embark on a line of reasoning that would be against the interests of the copyright owners, or against public interest generally. I need only repeat what I said on the last occasion. The decisions of the Controller are appealable to the High Court. If, therefore, the Controller is going off the rails in any series of decisions, it will be possible to have any one of them brought before the High Court. The Controller has extensive powers in relation to all kinds of commercial property, such as patents, trade marks, industrial designs, etc., and he is a man of experience; he is the most experienced man we have in this State to deal with these matters. I suggest there is little danger that the Controller would perform his work in any way inferior to a three-man tribunal.

Another point raised by Deputy Costello was in regard to costs of actions taken by or on behalf of people whose copyright had been infringed. Deputy Costello argued that, in the case of flagrant breaches, we should specifically provide for such in the section. I undertook to examine whether the Deputy's argument should be met and I have decided that we already have substantially provided for flagrant breaches. In the first place, the provisions in this measure are based on the Courts of Justice Act of 1936 and the circumstances in which High Court costs will be allowable in an action that could have taken place in a lower court are the same as those governing actions in respect of any other property rights. I do not think there is any valid reason why we should put copyrights in a special position. Under Section 22, as I have already pointed out, additional damages may be awarded for flagrant breaches. Under Section 27 criminal proceedings can be taken against persons who knowingly infringe. In all the circumstances, I think the provisions relating to flagrant breaches are adequate.

Deputy Cosgrave raised the question of appeals to the Supreme Court. These are stated in the Bill to be taken only in the case of an appeal on a point of law. Having re-examined the matter, I find there are identical provisions in the Veterinary Surgeons Act, 1960, and in the Solicitors (Amendment) Act, 1960. The Deputy's fears, if he still entertains them, will be dispelled by the knowledge that, if the High Court refuses to give leave to appeal on a point of law, that decision is, I understand, appealable to the Supreme Court and the practice is that the appeal on that issue to the Supreme Court is treated as the appeal on the merits of the matter itself.

No doubt every Deputy thinks that, if his suggestions or amendments were accepted, the Bill would emerge in more perfect shape. I am no exception to that rule. I am sorry the Minister did not see fit to accept the suggestions I made on the Committee Stage, suggestions which, I think, would lead to improvements in this Bill. I do not think this Bill is by any means a perfect piece of legislation and I would hope that, if it were shown in practice not to be working out fairly and reasonably, the Minister would be prepared to bring in suitable amending legislation.

One of the reasons why we are particularly concerned about this piece of legislation is that copyright law is not the type of law which becomes a burning political issue but is inclined to be left dormant for a good number of years. The experience here has been that for nearly 40 years we have left our existing legislation untouched. For this reason we should take particular care as to the type of procedures we are going to adopt in the future. While I indicated certain doubts about the procedures that were to be adopted in the Bill, I made it clear that I did not refer or intend to refer to any existing person or existing organisation for that matter.

I wish now to deal with the points which were raised on the Committee Stage and to which reference has now been made by the Minister. The first matter concerns the question of ephemeral recordings. The Minister explained the practice by which Radio Eireann has a weekly record of its operations sent to organisations which are concerned with composers' interests. I was constrained to point out to the Minister on Committee Stage that there may be individual writers or authors who are not in any copyright owners organisation and who will not be in a very privileged position. It seemed to me that it would not involve any great administrative difficulty if we were to provide in this Bill that the date of the destroyal by the authority were made known to the copyright owner and the date of its broadcast. The object of that would be to ensure that no mistakes would be made.

As I indicated earlier, I do not for a moment suggest that the existing broadcasting authority will deliberately take away any person's rights or deliberately deprive the owners of copyright of the remuneration to which they are entitled. However, we are legislating now for probably a considerable time in the future. Authorities may change and Telefís Éireann may change its statutory set-up. In these circumstances, it would probably be of assistance to the individual owners, say, persons who had written a play or produced a book or a poem, if this legislation were amended as I have suggested.

It is not an answer to that suggestion to state that it is well known what is put on Telefís Eireann and Radio Eireann, because we are concerned not so much with persons who live in this country but with owners of copyright whose works may be put on Telefís Eireann or Radio Eireann but who may be residing abroad. It is an unfortunate but a well-known fact that many of our Irish authors seem to find it necessary to reside outside where normally the beams of Telefís Éireann would reach or where normally the RTV Guide would have wide circulation. Therefore, the Minister might consider again whether it would be possible, perhaps in the Seanad, to meet the suggestions I have made.

I should like also to repeat the points I made on Committee Stage concerning the formation of the tribunal which will hear any disputes that arise concerning copyright fees. This, of course, is a matter of livelihood to owners of dancehalls and owners of copyright musical works. It is also perhaps a matter of livelihood to owners of other halls and to owners of dramatic or literary works which have been composed by them. Therefore we should take great care that the best possible machinery for arbitration is set up.

It is not an argument against the suggestion which I have made to say there is always an appeal to the High Court from the decision of the Controller. Appeals to the High Court are unfortunately expensive matters. Very frequently persons who have had the experience of arbitration, although they may feel aggrieved by the result, feel it is not worth while going any further. Their spirit may be dampened by their experience before an arbitrator or before a lower court and so injustices are done and go without remedy.

While I repeat what I said on Committee Stage that I do not in any way cast the slightest doubt on the ability or integrity of the person who is proposed to be the arbitrator in these matters, I do think that, as a matter of principle, a tribunal of three is a better board to determine these important property rights. As I have indicated, these are not trivial matters. Our experience in other fields—I am not referring at all to industrial property or trade marks—would bear out the view that it is undesirable that one individual over a number of years should virtually control the arbitration court in a given field. I do not wish to be more specific than that but I think Deputies know exactly what has occurred in other fields and the unfortunate thing that can happen when one person alone has what amounts to a monopoly in determining arbitration cases. The fact that an appeal to the court lies is not a sufficient safeguard.

The final matter to which the Minister made references was the new Section 23 of the Bill. I am concerned that we should ensure here that persons who deliberately break the copyright in any work should not be permitted to do so with impunity. Circumstances might arise where, if the Bill as drafted is enacted, it might be simpler for a person wilfully to break the copyright rather than meet his legal obligations.

The difficulty I would anticipate will arise as to the meaning of a "flagrant" breach. This is a matter which will have to be determined sooner or later by the court. It is possible to envisage deliberate breaches of copyright which may not be flagrant. It may amount to an international breach but may not come within the description "flagrant". In those circumstances the remedies for a flagrant breach would not exist and the copyright owner might find himself in a difficult situation.

I appreciate that the section as drafted follows the provisions of the Courts of Justice Acts for similar types of circumstances but it is possible to suggest that there is a distinction between copyright action and ordinary rights of property where litigation is involved, particularly the difficulty of proof of copyright ownership which may from time to time arise and is practically automatically put in issue.

What I have suggested to the Minister is that wider discretion than exists at present should be given to the High Court where actions are commenced there. I think the position at the moment is that the High Court is pretty restricted in the way its discretion has to be exercised. I feel that my suggestion is a reasonable one: that the High Court should have greater discretion than it is now given where breaches of copyright have occurred, where difficulties of proof are involved, and where a breach has occurred which may not be a flagrant breach.

As I have said, there has not been a great deal of litigation of this type in the courts. To my knowledge, there was only one case where exemplary damages were given in the Irish courts. A sum of £50 was given for exemplary damages in one case quite recently. In the English courts, when there were flagrant breaches, larger sums were given as exemplary damages. I would anticipate that the majority of the cases will not come under the provisions of Section 22 but in general in circumstances where a person may decide to take a chance, not involving any flagrant breach but with the deliberate intention of evading responsibility, I feel that instead of seeing that persons who have deliberately infringed a copyright will not do so, we may, in fact, be bringing about the opposite effect with the legislation as it is now drafted.

I do not know whether there is much action the Minister can take in regard to a matter to which I should like to refer but I think it is something that should be kept under observation at any rate. A great deal of the revenue secured from charges in this country in respect of copyright so far as imported materials are concerned is exported to a country that is not, so far as I am aware, a member of the Berne Convention. To that extent, the balance of advantage lies heavily in favour of that country and the people who make charges in respect of recordings of one sort or another derive very substantial benefits. There is no comparable benefit which we can secure because of the fact that copyright does not exist in that case and the charges which are made are not, therefore, subject to any of the Conventions dealing with copyright.

Obviously we cannot compel any country to become a party to the Berne Convention and to comply, if it does not wish to comply, with the established international Conventions to which we are a party. Because of the very substantial sums which are charged and the considerable revenue secured from charges made here, I think it is important that this matter should be kept under observation.

Our primary interest is to protect our own people in this matter, and while it is obviously to our advantage to have international standards of copyright recognised and implemented, nevertheless, many of the fees paid here are paid, as I said, in respect of recordings made and produced in a country that is not a party to the Berne Convention, and to that extent the substantial sums which are paid are, if you like, exported, and we get no comparable advantage. It is a matter that might be the subject of periodic review, at any rate, to see whether there is any procedure available now, or will be in the future in specific cases of that sort where we pay certain fees in respect of recordings made in non-member countries, by which we might decide on special charges, or allow special concessions to persons here who are obliged to pay for these recordings. Subject to that reservation, I think the measure constitutes an improvement of the existing position.

Question put and agreed to.