It is doubtful whether we ought to engage in a major debate on copyright law. The minor measure we are introducing will be repealed in a few months as a result of the more significant Bill which has been in gestation for a considerable period. If I am wrong I presume the Minister of State will correct me in his reply. However, the major Bill will repeal all copyright law including this Bill.
As a member of the Committee of Public Accounts I did not have an opportunity to hear the Minister of State's address. This Bill has been produced because of pressure from what Graham Greene might have called "the Americans". There may be good reasons for that but this legislation is concerned with alleged piracy in specific areas. It is because of that pressure that the Bill is being taken as an abstract from a more significant Bill.
I would be the first to agree with the Minister of State that this is a complex area of law. The intellectual property unit in the Department has been put under significant pressure to produce this Bill. It is an area of unusual complexity and the staffing and resources in that unit have not always been what they ought to be. During the EU Presidency further pressures were put on the unit concerned. We are behind in terms of the implementation of European Union directives and two in particular. We are not exactly out of step in Europe in the sense that it could be argued that we are all behind on this side of the Atlantic. It is an open question as to whether there was ever a basis for the alleged inadequacies of Irish copyright law.
For proprietary reasons the software industry in the US was very aggressive and assertive in making this claim. However, if one reads the financial press it is notable that the entire US software industry does not hold that view. One company which bestrides the globe in this sector and which, happily, is located in Ireland is at loggerheads with the US Government in respect of a number of issues. Nonetheless, the US threatened to put Ireland on watch and asserted significant pressure. This Bill has emerged from that pressure though not all of the US software industry was unhappy about the supposed inadequacies in Ireland.
While not going into any depth in this debate in trying to define what we are talking about perhaps Macauley's definition is still most apposite. He said that copyright was "a tax on readers for the purpose of giving a bounty to writers." That is a pithy summation of what was seen to be copyright law long ago. From that bounty, as from all bounties, grew the gigantic, modern commercial publishing business.
From that ancient rationale we have come to the present situation of the roles of the software and film industries. It is possible to say that Hollywood, Wapping, Silicone Valley and Seattle would have us forget the ancient rationale. They would have us talk in terms of truck commerce and the great religion of our age — the false faith of economics. However, copyright and the law of intellectual property more generally is about much more. It is originally and by intention a more decent thing. It is about creating a more civilised, literate and learned society in which intellectual endeavour is cultivated and the grantaided, tax-relieved and self-absorbed creative community works for the wider social good and the stimulation and enrichment of cultural life. This high and noble interest is also evident in the origins and development of patent law.
Is it true that we are following some of the principles in the recent Trade Marks Act? It is a significant shift. In layman's English, one is guilty until proven innocent. As I see it, that is the nub of the Bill. It is a drastic measure. Perhaps the extent of electronic and video piracy is such that this is necessary. There is no doubt that one of the greatest difficulties the Minister will face in devising the new copyright Bill is getting the balance right. In terms of the competing forces, the assertion of proprietary interests and the introduction in this Bill of evidentiary presumptions in favour of the plaintiffs, it is important that we get it right.
Every country in the world is facing pressure to update and adapt copyright law and the law on intellectual property generally. The process of drafting the new Bill coincides with a major moment in history for intellectual property as a result of the emergence of the information society. It is a happy juncture for us, whatever about the alleged delay, to be bringing forward reforming legislation. How we handle the amendment of intellectual property legislation will have a major influence on what the information society will come to mean for us, who will benefit and the extent to which society will gain from it. They are major questions in terms of what might loosely be described as the US position in this area.
One of the important factors in the theoretical shape of copyright is the public interest. It may not be readily apparent that the decisions we will make in the major Bill will have profound implications for the public interest. The State should regulate or intervene only to the extent that it can be said to further the public interest. Copyright is a case in point. It is an artificial construct created by the State with the public interest in mind. In the case of copyright, the public interest may coincide at any time with the interests of any one or any combination of the groups interested in copyright.
I hope this legislation, which may seem to be minor, will be on the Statute Book for a short time. It is my understanding that the Minister expects to be back in the House in the autumn with the major Bill. We are, therefore, wasting our words on the desert air on this one. I sincerely hope the Minister will give a commitment that on the introduction of the major Bill we will have an opportunity to adequately tease out these fundamental questions. He has informally suggested that we should facilitate the passing of this Bill expeditiously. I do not think anybody is minded to obstruct its progress if there are significant commercial interests at stake, although there are significant theoretical, philosophical and public interest questions to be raised about that.
There is a presumption of guilt until proven innocent. Section 2(4) raises an established principle of the law on intellectual property, that an employee gets paid for his or her contribution but he or she does not own the copyright. What are the implications of this subsection in the era of the Internet where a journalist writes an original work of some value which can be accessed almost immediately all over the world? While the owner of the copyright may get paid a number of times, the journalist gets paid only once. It is a principle which can be translated into other propositions which could be advanced.
What is intended by section 2(8) which states that the presumption set out in subsections (2) to (7) shall apply to the same extent in any actions relating to an infringement alleged to have occurred before the date on which copies of a work were published? Does it refer to live performances? This is an area of some complexity. I fear that we are putting legislation on the Statute Book on the word and honour of the Minister without knowing the implications.
The Bill seems to give the right to assert ownership in certain circumstances. For example, if the Acting Chairman and I were to contrive to write down the notes of Boolavogue, slightly adapt them, prepare the music sheets or make a record, it seems we could assert ownership of that work. It also seems that flyboys could exert ownership of the great body of traditional Irish music of which it is not possible to trace the authors. It is not contestable. I am aware this area has been looked at by flyboys for some time who have no greater facility than I have in the business of authoring music but they can become very wealthy overnight if successful. For the reasons I explained I am happy to facilitate the expeditious enactment of this legislation. It is my understanding it is primarily driven by Hollywood and the Silicon Valley, it will be repealed on the introduction of the major Act and the Minister will give adequate time to the House on that occasion to tease out major and significant questions in terms of society and public interest.
