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Dáil Éireann debate -
Wednesday, 25 Nov 1987

Vol. 375 No. 8

Copyright (Amendment) Bill, 1984: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad and amendments to those amendments.
Debate resumed on amendment No. 1 to amendment in lieu of Seanad amendment No. 1:
1. In the fifth line, after "artistic", to insert ",cultural or educational".
—(Deputy Keating)

The amendment was introduced originally in order to facilitate the Hyster project in Limerick which is an all-makes parts project. They wanted to avoid being sued for producing parts for products produced by other people on the grounds that the spare parts were based on drawings of those parts. They wanted to avoid a claim being made against them by the original manufacturers of those products that they were in breach of copyright by using those drawings as a basis for producing spare parts. As the House knows, that project, which in my opinion was not a good one because the explosure of the State and the taxpayer was far too great relative to the risks taken by the company promoters, Hyster Ltd, is not going ahead. Therefore, I am a bit puzzled as to why we need the amendment, given that that was the original purpose of it.

I know that the Minister's amendment may be moving in a direction similar to the direction of the recently published Copyright Bill in the UK where copyrights protection which previously was for the life of the author plus a number of years — I cannot remember the number of years but it was for a very long period — is now being restricted to about 20 years. That British legislation was only published last week. I should like to ask the Minister why it is considered necessary to go ahead with the amendment in the light of the Hyster project not going ahead. Why is the Minister not waiting to see whether we should follow the more comprehensive legislative approach in Britain rather than introducing a piecemeal measure of this type?

As the Deputy is aware, this amendment was inserted at the request of the IDA. We have had further consultations with the IDA and they confirmed the view that this amendment should remain because they feel it would increase competitiveness and the level of technology in indigenous companies. Any legislation that would restrict copying would not be beneficial. It is their conviction that under the R and D grants scheme a substantial number of applications from indigenous companies are in respect of projects which are copy related. Any legislation which is inhibiting in this respect would considerably reduce the level of R and D in Irish companies. They are also of the conviction that legislative restrictions on copying would have an adverse effect on their links programme as a number of small industries produce overseas products which are copied from internationally available products. They also believe it would give them a desirable leverage in attracting to Ireland manufacturers of components who would, as our present law stands, face serious legal difficulties. That is the view they expressed to us. For that reason we feel the amendment should stand.

As regards the United Kingdom's Copyright Bill, we have examined it and it seems to be going in the same direction as we are. We feel that, at this stage, we should not follow in a slavish fashion everything that happens in another jurisdiction. We are happy that what we have is appropriate for this country.

I accept that. I would go along with Deputy Kelly in his oft-repeated advice to this House that we should not slavishly follow British legislation, but there is a point here. There is a move towards a uniform European copyright law. Is that not so? It is wise that we should try to have our law as much in tune with others so that we are not radically out of line, unless there is a very good reason. There may be a very good reason in this case for going ahead, and the Minister has made a good cause for it, but I would like to ask him about the consistency of this proposal with any proposals that are on the table for a European standard in regard to copyright protection.

My information is that there are at present no European proposals for copyright harmonisation.

Are there any proposals at international level generally, apart from Europe? I understand there is an agency concerned with copyright internationally. Are there any proposals for the introduction of a degree of uniformity in international law from that quarter?

Is our legislation significantly different from the British proposal?

No. The British proposal is moving in our direction. It does not go as far in relation to the removal of copyright from functional objects but it is certainly coming in our direction and is not as restrictive as it was.

Is there any difficulty with the definition of the word "functional"? Am I to take it that the only thing excluded from "functional" is artistic matter, and that every other design is in order as being functional. Is that true?

Yes, we are happy that "functional" is the appropriate word. As a matter of fact, we are as happy with it as the Deputy was at the time.

The Chair finds itself in slight difficulty because Deputy Keating is not here and he indicated earlier that he hoped to be back to discuss his amendment.

I have done my best to keep the debate going. I have been accused of speaking for too long.

A comment maybe; accusation is too strong a word. We will proceed with the business as ordered. Is the amendment to the amendment in lieu of Seanad Amendment No. 1 agreed?

Amendment put and declared lost.
Amendments Nos. 2 and 3 to amendment in lieu of Seanad Amendment No. 1 not moved.

I move amendment No. 1:

"That, in lieu of Seanad Amendment No. 1, the following amendment be made, viz:—

In page 2, before section 1, to insert the following new section:

1. —Section 14 of the Copyright Act, 1963, is hereby amended by the insertion after subsection (7) of the following subsection:

"(7A) The act of reproducing an object of any description which is in three dimensions shall not be taken to constitute an infringement of the copyright in an artistic work in two dimensions (other than such a work relating to a work of architecture) if—

(a) any of the features following, that is to say, shape, configuration and pattern, that appear in the work and are applied to the object are wholly or substantially functional, and

(b) the object is one of a number, in excess of fifty, of identical objects which have been manufactured and made commercially available by the owner of the copyright or by a person authorised by him in that behalf."."

Amendment agreed to.

I move that the Committee agree with the Seanad in amendment No. 2:

In page 2, line 8, "(4)," inserted before "(5),".

Question put and agreed to.

Seanad Amendment No.3. Amendment No. 5 is cognate. Amendments Nos. 3 and 5 will be taken together by agreement.

I move that the Committee agree with the Seanad in amendment No. 3:

In page 2, lines 10 and 11, "after the commencement of this section" deleted and "after the commencement of the Copyright (Amendment) Act, 1984," substituted.

Question put and agreed to.

Amendments Nos. 1, 2 and 3 to Seanad Amendment No. 4 to be taken together by agreement. Agreed. These amendments are in the name of Deputy Michael Keating. The Deputy is not here but we must proceed without him.

Amendments Nos. 1, 2 and 3 to Seanad Amendment No. 4 not moved.

I move that the Committee agree with the Seanad in amendment No. 4:

In page 2, between lines 20 and 21, the following subsection inserted:

"(4) The District Court, upon the application of the owner of the copyright in any work, may act as follows: If satisfied by evidence that there is reasonable ground for believing that infringing copies of the work are being hawked, carried about, sold or offered or exposed for sale, let for hire or offered or exposed for hire, may by order authorise a member of the Garda Síochána to seize the copies without warrant and to bring them before the court, and the court, on proof that the copies are infringing copies, may order them to be destroyed, or to be delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.".

Question put and agreed to.

I move that the Committee agree with the Seanad in Amendment No. 5:

In page 2, line 32, "after the commencement of this section" deleted and "after the commencement of the Copyright (Amendment) Act, 1984,” substituted.

Question put and agreed to.

Seanad Amendment No. 6 and Amendment No. 1 to Seanad Amendment No. 6 to be taken together by agreement.

Amendment No. 1 to Seanad Amendment No.6 not moved.

I move that the Committee agree with the Seanad in Amendment No. 6.

In page 3, between lines 19 and 20, the following new subsection inserted:

"(10A) Notwithstanding anything contained in subsection (10) of this section, where any person causes a work specified in subsection (8) of this section to be performed in public in contravention of the said subsection (8) by means of a television broadcast or a sound broadcast, he shall, in lieu of any penalty specified in the said subsection (10), be liable on summary conviction to a fine not exceeding £100.".

Originally a person could be liable on summary conviction of a criminal offence to a fine not exceeding £1,000 in the case of a first conviction of an offence under this section and in any other case to such a fine or, at the discreation of the court, to imprisonment for a term not exceeding six months. After much debate in the Seanad, we sent the Bill back with our amendments. I believe our amendment was limited because we should have included background music. I ask the Minister to amend this section to cover background music. I am referring only to records, cassettes or tapes, provided they are played in a cafe, bar or lounge. We could have a very serious problem when we take into account marching bands on St. Patrick's Day or festivals and so on. The Bill brings into question this entire area of live performances. Once given the franchise the Performing Rights Society to which I referred earlier will explore every avenue to get money. This Bill should be withdrawn and there should be a review of the activities of the Performing Rights Society in relation to their methods of assessment and their extortion of money collected. Where does that money go? Over 90 per cent of it leaves the country. I know of cases where publicans have been assessed and threatened with bankruptcy unless they coughed up.

Where traditional music is played the methods used by the Performing Rights Society bring the whole operation into serious question. Traditional music should not be copyright but money has been extorted from people who perform in premises. The method used is that a representative of the Performing Rights Society goes into a premises, assesses the seating capacity and then levies an annual charge. However, the levy should be based on the number of customers and this is a fierce bone of contention around the country. People have enough commitments to meet without handing out money which they feel is not due. The society have already got their cut from performances on radio and television. Pending investigation by the Department of the Performing Rights Society and their activities, the manner of their assessment and extortion; I do not applogise for using the word — the Bill should be shelved.

I do not agree that the Bill should be shelved but I agree with the other point made by Deputy Lynch in regard to traditional music. By definition, copyright cannot exist in regard to traditional music because it is traditional and distinct from something composed by a particular author. There is considerable injustice in levying a charge in respect of a premises where traditional music is the only music performed and in respect of which there is no copyright. If this extends to background music it may be going a bit too far because background music is essentially provided as a means of preventing others from hearing conversations which people do not wish them to hear. It is not provided for an intrinsic entertainment purpose. There is a danger in conveying a right to fees in respect of background music. The Minister should look at these points.

I recognise the problem referred to by Deputy Lynch. He queried the charges levied by the Performing Rights Society but that has nothing to do with the amendment. In relation to amendment No. 6, the Deputy is aware that this was introduced in the Seanad where it was represented that the same penalties under the 1963 Act were being applied for the more minor offence of allowing music to be played on radio and television in public. This is distinct from the more serious copyright offence such as illicit copying and infringement of tapes. That was accepted as inequitable and, as a consequence, the amendment provides for maintaining the fine at its present level of £100 and abolishing the alternative penalty of a prison sentence.

We are aware that many Deputies, including Deputy Lynch, have had concerted pressure on them to extend this to the playing of background music in certain situations. The amendment goes as far as it can and to include background music would be totally contrary to the whole principle of copyright.

Is music played on the radio background music?

Can the Deputy dance to background music?

There is a special licence for dancing. I will accept what the Minister said provided I get a categoric assurance that, if certain organisations abuse their rights, as they have done in the past, I can come back to the House and ask the Minister to bring in further amending legislation to rectify the position.

Deputy Lynch knows that I would do anything to accommodate him. He has queried the role of the Performing Rights Society but I am sure he is aware that people can take them to court if they are not satisfied with the charges levied, particularly if they charge for non-copyright material.

That point was referred to by Deputy Bruton when he was Minister. People have the right to go to court but everybody knows that an ordinary business person down the country does not want to go to court and that fees should be covered by legislation.

There were amendments in my name but I was not in a position to move them because, unfortunately, the difficulty with the members of my party is that we live far apart and it took some time to get my papers. I put these amendments down, not for the purpose of pursuing them in any detail, but for the Minister to look at their content to see if there is something of merit in them. They are largely drafting amendments which might strengthen the Bill. The Minister may say that he accepts the spirit of the amendments and will look at the detail to see if they add anything to the Bill and I would be happy if he did so. I support the principle of the measure.

We have conscientiously examined this and we did not find that this added anything. We were quite happy with the words that were there.

Amendments reported and agreed to.

A message will be sent to the Seanad accordingly.

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