I move amendment No. 1:
In page 2, line 8 before "(9)", to insert "(1), (5), (8),".
Copyright (Amendment) Bill, 1984: Report Stage.
Bill recommitted in respect of amendment No. 1.
Amendment agreed to.
Amendment reported.
Bill recommitted in respect of amendment No. 2:
Mr. Bruton
I move amendment No. 2:
In page 2, between lines 9 and 10, to insert the following:
"(1) Any person who, at a time after the commencement of this section when copyright subsists in a work——
(a) makes for sale or hire, or
(b) sells or lets for hire, or by way of trade offers or exposes for sale or hire, or for the purposes of trade has in his possession, or
(c) by way of trade exhibits in public, or
(d) imports into the State, otherwise than for his private and domestic use,
any article which he knows to be an infringing copy of the work, shall be guilty of an offence under this subsection.
(5) If a Justice of the District Court is satisifed by information on oath that there is reasonable ground for suspecting that an offence under subsection (1), (2), (3) or (8) of this section is being committed on any premises, such Justice may grant a search warrant authorising a named member of the Garda Síochána accompanied by such other members of the Garda Síochána as may be necessary, to enter on the premises, if need be by force, and to seize any copies of any cinematograph film or any work including plates in respect of which he has reasonable ground for suspecting that an offence under any of the said subsections is being committed.
(8) Any person who after the commencement of this section causes a literary, dramatic or musical work to be performed in public, or a cinematograph film to be shown, knowing that copyright subsists in the work or in the cinematograph film, and that the performance or showing constitutes an infringement of the copyright, shall be guilty of an offence under this subsection.".
Basically these amendments are broken down into three parts. They are proposing amendments to subsections (1), (5) and (8) of the original section 27 and each of these new subsections involves a change in the original. I would like to go through them in order to indicate to the House their importance. In respect of the amendment to subsection (1), if a person has offending material for which a copyright exists and in respect of which the obligation of copyright has not been met, then, in addition to it being an offence to make these for sale or hire, to sell them, lease them for hire or expose them for sale, in future as a result of this amendment it will also be an offence simply to possess them for the purpose of trade, in addition to offering or exposing them for sale. The amendment deals with the technical possibility that under the present law a trader who possesses infringing copies with the intention of selling or hiring them could have them stored somewhere in his premises other than in the display area and could escape prosecution on the grounds that technically they were not exposed or offered for sale even though the intention was that they would be available for sale as and when necessary. This is the only new point in subsection (1).
As for subsection (5), there are four changes being made as against the original subsection (5) of the Principal Act. These are in response to suggestions made by Deputy Flynn during Committee Stage which I promised to take into account. Firstly, whereas in the past it was necessary to obtain the consent of the District Court, on the supply of information on oath that there were reasonable grounds for suspecting an offence, to obtain a search warrant, it will be sufficient now to satisfy a justice of the court who can grant a search warrant, not necessarily in the full court but in his chambers, at any time.
Secondly, it is proposed to make it possible that a search warrant can be issued not solely to a member of the Garda Síochána not below the rank of Inspector but to any named member of the Garda Síochána. This named member will, of course, be capable of being accompanied by such additional members as are considered necessary, as was the case under the previous provision in regard to Inspector or higher ranking officer.
Thirdly, in response to a suggestion made by Deputy Flynn, subsection (5) is being amended to remove the restriction on the time when a search may be undertaken. Under existing legislation, authority is given to enter premises only between the hours of 6 a.m. and 9 p.m. No time restriction will apply in the new section.
Fourthly, the purposes for which one may apply for a search warrant will be extended to encompass not only the suspicion of an offence against subsections (1), (2) and (3) of the 1963 Act which include making for sale or hire, selling or letting for hire, exhibiting in public, distributing or holding plates but also offences against the new subsection (8) of section 27 which includes the offence of performing in public or providing a performance in public of an offending work or film. A search of the premises may be undertaken where a performance is being given or where it is suspected that a performance is being given. The premises may be searched in respect of that offence as distinct from the offence of selling, distributing or possessing plates. These are very significant extensions of the search powers.
The proposed amendments will extend the provisions of section 8 which relates to performances. Where previously section 8 dealt with the unauthorised performance of a literary, dramatic or musical work in public, the new subsection (8) will deal with the unauthorised performance of a literary, dramatic or musical work and also the showing of a cinematograph film. Either type of performance will now be an offence against subsection (8).
In these comprehensive amendments to section 27 I have met not only the points made by Deputy Flynn but I have also made other desirable changes. I recommend the amendment to the House. I am confident it will strengthen the legislation and represents the consensus that was achieved during the debate on Committee Stage.
It is very pleasing that the Minister, being the person who initially talked about Dáil reform in the House, should be the first to accept readily a review of this section. I compliment the Minister in this regard.
Thank you.
What the Minister has done goes a long way to tighten up the section. He has included in subsection (1) subsection (8) as being part of the overall thrust of subsection (5) which I regard as most important in the implementation of the Bill. The four changes do everything to make this legislation more effective in the interests of all concerned.
I want to ask the Minister one or two small questions about the rewording of the section and if he would be available to do that. In the original Act "cinematograph film" is not defined. Is there a loophole there that might be worth considering, if not at this time, on another occasion?
It is included.
Can the Minister give me the reference?
Section 18 of the Act.
I was looking for the original definition under section 2. It is not mentioned there.
It is cross-referred to section 18. It is section 18 (10).
I ask the Minister to bear with me for a moment. My only concern is that it will be broad enough to cover the modern concept of filming in so far as videos are concerned.
It is section 18 anyway.
Yes, "cinematograph film" covers the question of a video even in the modern context. I am particularly pleased that the Minister found it possible to remove the provision that a named particular level Garda officer had to be involved in the seizure or the investigation of the offence and the question about the time during which this matter could be attended to. That made a nonsense of the effort that might be made to seize the copies. If the Minister was considering that subsection (8) would be incorporated in the wording of subsection (5) it might have necessitated another change particularly in so far as subsection (12) was concerned. That was the question of appeals that might be taken to the Circuit Court from any orders under special named sections of that section. I would have felt that it was necessary to have amended subsection (12) to include subsection (8) in particular, as it would seem incongruous that one could be charged under that section and could not subsequently follow an appeal to the Circuit Court, whereas under all the other subsections one was entitled to do that. The Minister might be in a position to elaborate on the need not to include that in section 27 (12).
My officials will be looking at this, but as I see it subsection (12) relates to subsections (4), (5), (6) and (11) under which an order may be made. All that subsection (8) does is create an offence. It does not confer an order-making power. The order-making power in respect of the offences created under subsection (8) is given under other subsections as I read it, namely the subsections mentioned in subsection (12).
It is purely a technical matter, but if somebody is charged under section 27 (5) of the Act, would that person be empowered to have an appeal lodged with the Circuit Court if it is not included in the list——
I take it that the normal appeals procedures would apply in respect of any offence. That is implicit in the legislation and, I take it, in all legislation. What is inferred in subsection (12) is simply an appeal against order-making powers as distinct from normal criminal proceedings. I will check that. I think it concerns orders.
It is confined purely to orders, and orders only, under the section.
Yes. The absence of a reference to subsection (8) does not take away the normal constitutional and legal rights that anyone charged with an offence under subsection (8) has.
I would like to refer the Minister back to subsection (4) of this section. Did he consider it might have been necessary to include any further wording in that subsection particularly where the original Act says, "are offered for sale"? Did he consider the inclusion of the words, "or hire" in that section? As I explained on a previous occasion, 95 per cent of the trade being conducted in videos is in the hiring of them as against their retail. For that reason I would have thought that that subsection might have been tightened to include the question of the hiring of videos as against the question of offering them purely for sale.
The Deputy appreciates that this section concerns only the powers to destroy. It does not deal with the power to prosecute on the basis of the offence of possessing.
That section also allows the Garda Síochána after seizure to bring the offending copies to the court and the court may decide either to give them to the owner of the copyright or to have them destroyed, or whatever other arrangement might be seen to be judicious between the owner of the copyright and the justice at the time.
I appreciate very much the Deputy's statement that we have on both sides tried to improve the Bill regardless of who is making the suggestion. I would be prepared to look at this possibility that that power could be extended to include items that were being offered for hire as distinct from being offered for sale. However, I would have to deal with that in the Seanad. At this stage there is no way in which I can introduce an amendment unless by consent here to introduce an oral amendment, but that is rather a risky proceeding to engage in in a matter as important as this. All I can say is that I will look at that. The Deputy will appreciate that I am not involved in the day-to-day enforcement of this legislation, hence the type of problem that he has adverted to would not normally come to my attention. I presume that if it were a real problem those concerned with the enforcement would have made representations to me asking that an extension of the powers of destruction and confiscation of the offending copies would be made. They have not done so. However, I will avail of the opportunity and the time between now and the Seanad debate to examine that matter and if an amendment would be useful to take account of the Deputy's points it will, of course, be made.
I believe that the Minister has done everything that one could possibly ask him to do in making this section of the original Bill an effective measure in dealing with what has now become recognised as a very great and growing problem which has caused considerable loss of revenue in the first instance to the State, because a large number of these fly-by-nights and illegal operators, of course, make no returns to anybody about how they procure their product or how they sell it to the consumer. It is also a considerable loss of revenue to the legitimate operators in the field, to the merchants who have been selling and hiring for a livelihood and creating employment in this area. If this new section of the original Bill is pursued vigorously to the full limit of the new penalties as outlined by the Minister and agreed here, it will go some distance to meet the demands of legitimate operators and it is hoped to bring about a cessation of what has become endemic——
In the cinemas.
——in the cinemas, as the Minister has said. It can provide a decent profit and a decent type of entertainment which has been offered for so long under considerable pressure. I welcome the amendment as outlined by the Minister and am pleased that he will consider further subsection (4) at Seanad stage.
Amendment agreed to.
Amendment reported.
I express my thanks to Deputy Flynn for the very detailed consideration which he has given to the legislation in question and for the constructive amendments which have been put forward.
Bill reported, with amendments, received for final consideration and passed.