Vol. 348 No. 11
I move amendment No. 1:
In page 2, line 13, to delete "£50" and substitute "£100".
This amendment arises from a discussion between myself and Deputy Flynn on Second Stage and the consensus which emerged. He suggested — and I agreed — that we should raise the penalties under this legislation, which concerns the unauthorised displaying of video——
We are unable to hear the Minister.
If the Deputy listened and——
I am listening.
If there were less noise off stage and if the Deputy were more attentive and less inclined to interrupt in a disorderly fashion, he might be able to hear more.
What does the Minister want me to do?
He should keep quiet until I sit down and then he can speak at length. These amendments were agreed in principle between Deputy Flynn and me.
It is rather difficult to hear you.
The Minister should not use the same tone with the Chair as he used with me.
The amendments were agreed between Deputy Flynn and me and they represent a consensus. It might be argued that I should go further in raising these penalties but, as I indicated to Deputy Flynn, the consequence of going further would be that we would no longer be able to proceed by means of summary proceedings and consequently there would be delay in bringing a prosecution. This delay would reduce the enforceability of the legislation and would be undesirable because proceedings by indictment are more lengthy and cumbersome.
The Minister agreed during the Second Stage debate that there was need for a rethink as to the penalties that might apply and I am pleased that he agreed to revise his opinion on the matter. There is a sizeable increase from £5 to £100 per item and this indicates that the Minister recognises the seriousness of this piracy. It is unfortunate that matters cannot be dealt with on indictment in a quicker fashion so that we could exceed this provision. I see that the Minister has nodded to indicate that he accepts that point of view. I must comply with the amendment because we are confined to summary proceedings and to the limits applied to the courts which deal with these matters. I take it that the fine of £100 will be attached to each article to which the first offence applies. Irrespective of the number of pirated video cassettes that might be seized in any seizure, do I take it that the maximum fine would still be £1,000 for one seizure?
That is right.
It is unfortunate that we are limited to the £1,000. The penalty of £100 per item is quite satisfactory but the £1,000 maximum will not deal with the problem to any significant degree. It is possible to make sizeable amounts of money from this type of piracy and I doubt very much if a fine of £1,000 would be a deterrent.
The Deputy might allow me to make a point of clarification. There is a maximum of ten fines of £100 for each work but if in the course of a seizure ten different works are seized then there could be a fine of up to £10,000. The limit of £1,000 applies in respect of individual works rather than the entire seizure.
That is much more satisfactory but it is difficult to read it in the section. It is not specifically stated that the offence applies to the title of a work. I would be quite satisfied if the Minister would ensure that this could not become a loophole in the law of which a clever advocate could take advantage. The reading of the section would lead one to believe that irrespective of the number of titles involved in the seizure the maximum fine would still be only £1,000. I would be pleased to hear that the question of the title does apply.
What I have said is correct. It was checked with the Attorney General's Office. We would be able to meet the point made by Deputy Flynn.
Excellent. Regarding the retailing of pirated cassettes, there could be any fine, depending on the number of titles. It could be a multiple.
Up to ten times for each work.
Per seizure?
Yes.
If a seizure were made today, the operator could be found to be infringing again tomorrow and the goods could be seized again.
Yes. Presumably he would mend his ways after the first seizure.
Will the same criterion apply in the case of the hiring of illegal video cassettes, that the seizure could be multiplied against the number of titles? I believe that retailing represents only 5 per cent of the market and that the big money is to be made in the hiring of cassettes.
The same principle would apply.
Is the Minister satisfied that the wording of the section is adequate?
Yes.
Is the Minister familiar with the number of Garda actions which have been taken in the past year relating to this matter as against the number of civil actions taken against copyright theft? I am very concerned to get the Garda involved in pursuing the illegalities being perpetrated, as against the very difficult and expensive High Court actions against copyright theft.
The purpose of this Bill is to make it worthwhile for criminal proceedings to be taken. There will be a basis for a more active prosecution policy. I do not have readily available information as to the number of prosecutions in the past. If the Deputy is really insistent in the matter I can obtain it for him, but it might take some time.
I should like to think that in a year's time the matter will be pursued in the light of what transpires after the enacting of this legislation and when we would be in a better position to establish whether what had been enacted had proved to be an effective deterrent. I should like the Minister to put it on record that following a reasonable time allowed towards the pursuing of illegal operators he would consider favourably the introduction, if necessary, of stiffer penalties.
Yes. The Deputy may not be aware that there is provision for the presentation to the House of a report from the office of the Controller of Patents and Copyrights. Perhaps the appropriate method of reviewing the effectiveness of the legislation would be in the context of these reports. One of the problems with which we are faced in this House is the absence of any method whereby all the various reports that are presented to the House can be discussed. It might be worth while for the Deputy to raise this matter in the context of the next report of the Controller of Patents and Copyrights. Indeed, it might be possible for us in the meantime to improve the procedures for reviewing the contents of these reports. In that situation the point the Deputy is making would be kept under observation.
I should like the Minister's reflection on subsections 4 and 5 of section 27 which concern the way the matter can be dealt with through the District Court. Would the Minister not consider it necessary, particularly in relation to subsection 5 in so far as Garda action is concerned, to adjust that provision? I had contemplated an amendment in that area but the Minister may be able to find another way of dealing with the point. I have in mind particularly the question of an inspector of the Garda being the officer who needs to be employed in dealing with the matter and also the question of the times during which raids or seizures can take place. In the context particularly of the showing of illegal videos, would the Minister not consider it to be non-effective to apply a time limit in present-day circumstances? The two subsections in question are somewhat cumbersome in terms of dealing effectively with the type of operator we are talking of. There seems to be a loophole so far as he is concerned while there is a very large onus of responsibility on the applicant.
Does the Deputy mean that the offending video could be brought in after 9 p.m. and taken away before 6 a.m.?
Yes. Prior notice of application in the court would render it very simple for an illegal operator to evade the law. It is my opinion that those two subsections will not be effective, so perhaps the Minister would consider an alternative. The Chair will realise that we are ad idem in trying to find a better way of dealing with this problem.
I understand the problem but I am not sure as to how to respond to it.
When the application is made the District Court must be satisfied, on oath, that an offence is being committed but this would render it difficult subsequently for the Garda on foot of a warrant to catch the operator in the illegal act particularly when there is a restriction as to a particular rank of garda and a certain timescale during which the officer may enter the premises or seize the items in question. Those two subsections could have been incorporated in a simple section providing for application to the court whereby the Garda would be issued with a warrant.
I cannot think of any prima facie reason for the case the Deputy is making not being met but as the House is aware one of the concerns here always is to protect civil liberties and not to provide for unnecessary powers of intervention in respect of anyone's premises. I have not had time to study the question of the reason for the restriction as to time so I do not know the reason for it.
I referred in passing to this point on Second Stage.
I am afraid I did not pick up the point.
I had hoped that the Minister would deal with it because at the end of his Second Stage contribution he mentioned that he was considering other measures and provisions for Committee Stage.
The point to which the Deputy is referring is not what I was thinking of then. I had something else in mind but I was dissuaded from that.
Is the Minister prepared to undertake to have another look at this question and to leave over the Report Stage for perhaps a quick passage next week?
I am prepared to do that but I do not wish to have the Bill drag on for too long.
Another matter to which I referred in my Second Stage contribution and to which I had hoped the Minister would reply in concluding that stage concerned the publication of the Official Reports of the House in the context of how I was interpreting the definition of literary work in section 2 of the original Bill. As I understand it, the copyright of the Official Reports would be vested in the Government and my question was whether it would be necessary for one to seek permission from the Controller of Government Publications before reports of the proceedings of the House can be reprinted in whole or in part. I should like to know whether the question of privilege as defined in article 15 of the Constitution extends to publications of the Official Report. What is the legal position as to the publishing of extracts from statements made here in so far as newspaper reporting or television stills are concerned? I am talking of quoting selectively from debates as against publishing the whole Debate and I am wondering whether permission must be sought in such a case.
Not for normal reporting.
Normal reporting is covered in the Copyright Bill but the question of reprinting Dáil reports either in whole or in part or of selective stills on television is another matter. I am asking whether permission for such must be obtained from the person or from the group in whom the copyright is vested.
The Deputy did raise this matter on the other occasion. The answer to his questions is yes. I take it that the copyright to which he refers is vested in the Editor of Debates.
It would be the Controller of Government Publications in that circumstance.
It resides in the Government. It is necessary to get permission for the reproduction of the debates. That is the legal position. I would tend to question whether we should tend to be unduly pernickety in dealing with this matter. I do not know what the Deputy has in mind. It does not seem to me that there is much abuse in this area.
I am not concerned about the actual reporting. There has been a tendency of late in periodicals, books, magazines and other places to give selective quotations ——
Photo montages.
——selective extracts from the verbatim report of the debates in the House. It is very important that the public should know that you cannot give these quotations without obtaining prior permission. Selective reporting could lead to many difficulties.
The legal position is that permission is required. I would not be over-exercised about it one way or the other. I do not think it is a real problem. Obviously it is much more difficult to give a quotation out of context if one produces the verbatim report or to put a gloss on it. We could end up in a worse position than where we started if we were inclined to be too difficult about using the verbatim report. People would tend not to use it, and use less adequate sources for reportage. This would not be desirable. I have to confess that I was a bit puzzled as to why Deputy Flynn was raising this matter. I am even more puzzled now.
I am interested to hear what the Minister said about permission having to be sought.
In all good faith.
I would be happy if it was stated that matters quoted in italics were extracts from the Official Report.
That is fair enough.
It is not being done.
Now I understand.
I take it that the Bill is primarily concerned with the control of the illegal video trade which has reached mammoth proportions with a huge loss of revenue to the State and a continuing loss to cinemas and legitimate operators. I take it that it is a stop-gap operation. I hope the problem will be dealt with in the way outlined by the Minister. On Report Stage the Minister may consider altering the sections which I feel negative the good effects it might have.
I would be inclined to believe that if what Deputy Flynn referred to was a problem it would have been dealt with in the original legislation by the people concerned with enforcement. They would have made such proposals. I am very open to suggestions of this kind. I will consider it between now and Report Stage and, if an amendment is useful, it will be made.
The reason the Minister has not received strong representations concerning the alterations of sections 4 and 5 is the low fines involved. It was not worth the effort. There were about 40 civil actions which cost in excess of £100,000. Now the federation are hoping that with this kind of penalty clause the Garda will take up the running. I am pleased to accommodate the Minister.
I move amendment No. 2:
In page 2, to delete "£800" and substitute "£1,000".
I move amendment No. 3:
In page 2, line 24, to delete "£800" and substitute "£1,000".
I move amendment No. 4:
In page 2, subsection (2), line 33, to delete "to" and substitute "and".
This is a drafting amendment.
