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Dáil Éireann debate -
Thursday, 22 Feb 1968

Vol. 232 No. 11

Performers' Protection Bill, 1967: Second Stage.

I move that the Bill be now read a Second Time.

In October, 1961, an International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations was concluded at Rome. The Convention was drafted under the auspices of the United Nations Educational, Scientific and Cultural Organisation, the International Labour Office and the Bureau of the International Union for the Protection of Literary and Artistic Works. It was open for signature until 30th June, 1962, by which date it was signed by 36 countries, including Ireland. In accordance with the provisions of Article 25 the Convention entered into force on 18th May, 1964, following ratification by six countries, one of which was Britain.

So far as the requirements of the Convention relate to Producers of Phonograms and Broadcasting Organisations, they are already met by the provisions of the Copyright Act, 1963, which came into operation on 1st October, 1964. The present Bill is designed to meet the requirements of the Convention in relation to the protection of performers and, if it is enacted, we shall be in position to ratify the Convention.

The Performers' Protection Bill, 1964, was introduced in Dáil Éireann on 30th June, 1964, with the object of enabling us to ratify the Convention and it had its second reading on 25th November, 1964. A number of official amendments aimed at bringing the Bill into complete conformity with the Convention had been drafted for proposal on the Committee Stage, but the Bill lapsed on the dissolution of the Dáil in March, 1965, without reaching that stage. Following representations from interested parties the amendments proposed at that time were further examined and revised and they are incorporated in the Bill.

One of the essential features of the Convention is set out in Article 4, which requires that a Contracting State shall grant national treatment, i.e., broadly the same treatment as is given to nationals of the State, to performers whose performance takes place in another Contracting State or is incorporated in a phonogram or a broadcast made or published in or broadcast from that other Contracting State. Section 11 of the Bill will enable the Government to satisfy this requirement.

Article 7 of the Convention sets out certain acts in relation to performances which would infringe the rights of the performers or which would be contrary to the interests of the performers and requires that the protection to be given to performers shall include the possibility of preventing those acts. It is not proposed to create a property right in a performance, in the nature of a copyright, which a performer could enforce by civil action or which he might assign for enforcement to any group such as a performers' union. It is proposed to meet the requirements of Article 7 in sections 2, 3 and 4 of the Bill. The proposals in those sections provide for protection of performers by making it a penal offence to do certain acts in relation to performances. It will, for instance, be an offence, punishable by fine on summary conviction or conviction on indictment, to make a record or a film of a performance without the consent of the performer, to sell or hire such a record or film, or to use it for the purpose of giving a public performance.

Article 12 of the Convention provides that where commercial records are used for broadcasting purposes or for public performance, the user shall make a payment to the performers or the producers of the records or both. Under the provisions of the Copyright Act, 1963, payment is required to be made to the owners of copyright in sound recordings, that is to the makers of recordings, when their records are broadcast or used for public performance. It is understood that, under an agreement made between the recording companies and the various performers' union, a percentage of the money which these companies receive for this use of their records is paid over to the performers' unions for the benefit of their members. The proposals in the Bill will not interfere with this arrangement.

The initiation of proceedings under the Act will be the responsibility of the person aggrieved.

I recommend the Bill for the approval of Dáil Éireann.

We are certainly becoming a very cosmopolitan sort of State when we consider that in the past two days two Bills were introduced here which were necessary because of international agreements and the bringing into line of the law in regard to performance and behaviour in various States. Perhaps it is of the world in this case rather than of Europe as before. This question of performance adds up to a huge business when you take phonograph records, television, radio and all the rest of it into account. You find that this is an industry which is far greater than most people would think at a first cursory glance. When the production is even more easily dispersed than money, it is quite clear that the tentacles of the law and the proper guidance of the industry, should anybody cross State boundaries, should be kept on it.

The fact that this State has signed the documents arising from the Convention in 1961-62 means that we are committed to it. We have no objection at all on this side of the House to the introduction of this measure. We regard it as necessary. It is difficult for an Opposition to examine this Bill critically because it is not just something related to ourselves alone. It relates to an international Convention. There does not seem to be any objection from this side of the House to the Bill and accordingly we have no objection to its passing today.

There is an inquiry which I make at the instance indeed of a former Member of the House, a distinguished Member of the Minister's Party, on the occasion of this Bill. It is said that publicans, many of them small publicans barely on the existence line, throughout the country who make use of gramophone records for the popularising of their premises, indeed for the creation of the convivial mood, are compelled to make a contribution to this Society in respect of the playing of records. This would appear to be an imposition on them which could not be justified by the amount of business they do in the first instance. They are made to pay money for this. I would like the Minister to say if this is, in fact, the legal position.

If this is the legal position, would the Minister think of having a look at it to see what can be done to relieve such people? As we well know, many of those publicans are very hardworking people who have to work extraordinarily long hours. Indeed, all members of their families have, on occasion, to engage in the business in order to make it economically possible for it to be carried on at all. It would seem, when they buy a gramophone record for use in a very limited area such as a small public house, a lounge or a bar, unreasonable that they should have to pay a sum in respect of every time the record is played. I do not know if this is, in fact, the position. It is thought to be the position and I would like to hear the Minister on it.

May I make a short comment? I am not so much interested in those people. Deputy Dunne has dealt with one fact but I am interested in the use of radios in a public place. Most of us of necessity have to dine in hotels and cafes and we like a radio to be available, particularly for the news. Sometimes there is some music before the news or maybe it will continue afterwards. Most of the places I know have taken the radio out because of the fact that they have been required by the Performing Rights Society to pay for the use of it on the ground that certain songs or pieces of music were, in fact, played in such places. Perhaps the Minister might let me know what is the position there.

I believe the labourer is worthy of his hire and that in the case of somebody who performs or sings, if royalties are being paid, that person is entitled to get his share. I am a little hazy about the situation with regard to the number of records sold, the amount of money which goes to the performer or whether there is somebody else who syphons off some of it. The selling of records is becoming a big business at the present time. More money, as the Minister is aware, is spent by the younger people on records than on anything else in this country, and that includes food. This entertainment scoops off an awful lot of money. Certain people spend a fair proportion of their weekly or monthly wages on this sort of thing.

I do not know if the State gets a cut out of this. Does the State get anything out of gramophone records? I would like to hear the Minister on that. I would also like to know if any of the money being paid for the playing of those records goes into a society or not. What way is it distributed? I might say that if it goes to the people who sing on those records they are entitled to get their share because the artist is entitled to get some extra compensation.

What kind of place was the Deputy referring to?

Hotels, dining rooms and that type of place.

There is also another thing. Background music is used in lounges, which unlike Deputy Dunne's point, is supplied by a company. I do not want to say the name of the company but a weekly fee is paid and the records in the machines are changed regularly by people who call to the premises. This background music is used so that the people next door cannot hear what you are saying. Do the Performing Rights Society levy anything on this?

The points which have been raised on this Bill, I am afraid, do not really relate to it but I might say a word or two on them, since the points have been raised. As I said when introducing this Bill, under the provisions of the Copyright Act, 1963, payment is required to be made to the owners of copyright in sound recordings, that is, to the makers of recordings, when their records are broadcast or used for public performance. That aspect is covered under the Copyright Act and not under this Bill.

First of all, in regard to the point raised by Deputy Donegan, I do not know what the specific rights of the company providing those services are but I would assume that the paying of the fee would cover everything. In other words, in the cases which have been referred to by Deputy Donegan and Deputy Tully, the principle is that there is under the Copyright Act a right vested in the makers of the records to collect a fee in respect of any performance of this record in public. I cannot purport to define what a public performance is but I think there have been decisions on this by the courts, and as far as I know, substantially it means performance in or in connection with a business, and this would include lounge bars, hotels or anything like that. As Deputy Tully says, the labourer is worthy of his hire. I do not think reasonable objection can be taken to the fact that payment must be made.

Would the Minister not agree that where they are being broadcast it would be more equitable if the fee were collected from the Broadcasting Authority rather than have the case of the person who turns on the radio, when he wants the news and happens accidentally to get the Beatles?

If a record is broadcast by a radio station, a fee must be paid in respect of that broadcast. I think the Deputy's point is that another fee is demanded as well.

It is a matter for interpretation by the court as to whether or not it is justifiable. The principle of payment for performance in public is a sound one. The payments made to the record companies include payments which have to be made to the performers on foot of the contracts made by them with the companies. The only point I can make which would be of assistance to Deputy Dunne is that, while the principle is sound, it may not generally be known that there is a procedure whereby an appeal can be made against the amount of the fee charged by the Society to which he referred. There can be no objection to their levying the fee but in cases where it is thought too high—say, in relation to a small public house, and so on— there is a procedure for appeal, I think, to the Controller of Patents.

It is not some firm in England that has to deal with it?

The Controller of Patents in England?

No, Ireland. Take, for example, a small public house in the country. There is a procedure for appeal to our Controller of Patents against the amount of the fee. The Performing Rights Society, to which reference is made, is, I understand, a non-profit-making society and is really a trade union for performers to ensure that they get their just reward for their performance. There can be no objection to the principle on which they operate. But, if the fee is thought excessive, there is a procedure against that fee.

Does the State get anything?

The State gets turnover tax on the sale of these records and presumably would get income tax on income derived from them.

The Beatles sell a lot of records here.

Question put and agreed to.
Committee Stage ordered for Tuesday, 27th February, 1968.

As a matter of personal explanation, I should be glad if the Chair would afford me an opportunity of recording that the question of which I gave notice to you this morning that I wished to raise on the Adjournment this afternoon, relating to Radio Telefís Éireann, has been ruled by you, Sir, as not suitable for raising on the Adjournment. In the course of exchanges this morning, the Taoiseach challenged me to prove what I have to say. In view of the fact that I am now, at this moment, and have been, in possession of proof of what I have to say in regard to this matter, I think it essential that the public should know that the postponing of this disclosure cannot be laid at my feet.

The Deputy is long enough in this House to know that he may not question the ruling of the Chair. The Chair has given careful consideration to Deputy Dunne's request but is of opinion that it is not a matter that can be discussed on the Adjournment of the House.

On a point of order, Deputy Dunne and I have discussed this matter. What Deputy Dunne is attempting to do is merely to point out that the reason the matter is not being raised on the Adjournment is not of his making and that he proposes to raise this matter by way of question at a later stage. This morning, the Taoiseach asked Deputy Dunne to produce evidence and said Deputy Dunne had not got it. Deputy Dunne now wants to say he has the evidence.

I have the evidence and I shall produce it when the opportunity offers.

Sitting suspended at 12.35 p.m. and resumed at 1.30 p.m.
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