Copyright (Amendment) Bill, 1998: Second Stage.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

I move: "That the Bill be now read a Second Time."

It is with pleasure as well as a deep sense of responsibility that I introduce the Copyright (Amendment) Bill, 1998. This Bill represents a small first step in a root and branch reform of copyright law which is one of this Government's highest legislative priorities. The principal instrument of that reform, the proposed Copyright and Related Rights Bill, 1998, is in an advanced state of preparation in my Department and I hope to be in a position to bring it before this House in the near future.

The importance for the economy of providing a modern, effective and efficient regime of protection for copyright and related rights can scarcely be overstated. Copyright is still often thought of mainly in terms of books and other written materials. Yet, although the protection of this traditional area may be important, it goes only a little way to showing the importance of copyright in the commercial system as a whole. Copyright and its related rights are designed to protect the essential economic interests of creators and owners of a wide range of intellectual assets, including dramatic, musical and artistic works, computer programmes, databases, sound recordings and broadcasts, as well as rights in live performances. Without a strong regime of legal protection for copyright and related rights, the vitality of enterprise in all these areas could be blunted or destroyed. Bearing that in mind, and given the enormous contribution of both the artistic and high technology sectors to the current success of the economy, Deputies will require little convincing of the vital need for a powerful system of protection for copyright and related rights in Ireland.

The present state of copyright legislation is far from satisfactory. Many Deputies will be familiar with the remark that Ireland is, courtesy of St. Colmcille and his book, the birthplace of copyright. Be that as it may, it cannot be argued that our record in updating this area of our legislation has been impressive in recent years.

The last substantial reform was effected by the Copyright Act, 1963, which was to a large extent based on the United Kingdom Copyright Act of 1956. In terms of primary legislation, the intervening period has been barren, apart from the limited Copyright (Amendment) Act, 1987. In the area of performers' rights, the Performers' Protection Act, 1968, afforded limited protection to the rights of performers under criminal law but, at least in any direct sense, did little to secure performers' rights in the civil field. In addition, some secondary legislation has been introduced in the form of regulations under the European Communities Act with the aim of transposing certain European Community directives into Irish law. However, Ireland is facing the 21st century with copyright legislation designed for the 1950s.

This situation is profoundly unsatisfactory. A copyright system designed for the 1950s and left to stand without revision or review cannot serve the needs of the cultural sector or of our modern information and entertainment industries, the more so when the principal Act upon which that system rests was expressed in technology specific terms appropriate to that period. The Government is totally committed to sweeping away the archaic and outmoded system based on the Copyright Act, 1963, and to bringing forward a new regime of protection for copyright and related rights in line with the most stringent requirements of the information age. This reform will be achieved for the most part in the forthcoming Copyright and Related Rights Bill, 1998. It would be inappropriate to discuss the content of that measure in the context of the present Bill. However, it might be useful to indicate some of the principal objects informing its preparation.

The Government's intention is that in place of the outmoded system of copyright and related rights protection currently in place, the new legislation will provide for a clear, transparent and logical system of protection for copyright and related rights, for performers' property rights and rights in performances, moral rights in copyright works and for intellectual property rights in databases. The Copyright and Related Rights Bill will include clear provisions on the assignment and transmission of rights and on the licensing of rights. The existing provisions on infringement, offences, remedies and penalties will be replaced by a new regime clearly favouring the vindication of their rights by legitimate rightsholders and allowing for the imposition of penalties which are realistic by modern standards in relation to offences expressed in clear and comprehensive terms.

Apart from its generally outdated quality, a specific criticism of current Irish copyright and related rights legislation is that there has been a failure to transpose into Irish law the terms of a number of European Union directives relevant to this area and to bring Irish law into conformity with obligations incurred under international law on copyright and related rights. I assure Deputies that it will be a specific objective of the Copyright and Related Rights Bill, 1998, to bring Irish law into full conformity with all the EU directives in question, as well as all relevant obligations under international law, including the Trade Related Aspects of Intellectual Property Rights Agreement, known as the TRIPs Agreement.

In view of its important and extensive subject matter, it will not surprise Deputies that the Copyright and Related Rights Bill will be one of the longest and most complex non-consolidation Bills to come before this House when, in the near future, the lengthy process of its preparation and drafting comes to an end. In the meantime, the Government is pleased to bring forward the Copyright (Amendment) Bill, 1998, as a means of dealing with two serious deficiencies in the existing legislation as a matter of urgency and, perhaps more importantly, as an earnest of its determination to achieve comprehensive copyright reform at the earliest possible date.

The measures included in the Copyright (Amendment) Bill, 1998, may be briefly summarised as follows. The Bill contains two substantive sections. Section 2, which provides a replacement for the present section 26 of the Copyright Act, 1963, is designed to secure the following: that a presumption as to the subsistence of copyright in a work which is clearer than that contained in the Copyright Act, 1963, is put in place; that a clear presumption in favour of copyright rightsholders taking civil actions for breach of copyright, with the onus on defendants to rebut, is put in place; and that where a copy of a work carries or embodies a statement or mark identifying a party as the author, owner or exclusive licensee in relation to the copyright in that work, the identification thus established shall be presumed correct with the onus on defendants to rebut.

The right of copyright rightsholders to take civil actions for breach of copyright will always be a vital part of the overall system of protection for copyright rights, and the provisions of section 2 are designed to establish clear presumptions which will facilitate copyright rightsholders in taking such actions. The right to bring civil actions is only part of the answer to copyright infringement. It must be supplemented with a regime of offences and penalties of sufficient severity to constitute a punishment and a deterrent proportionate to the seriousness of copyright theft as a commercial crime in the context of the modern economy. In consequence of this, section 3 of the Bill amends section 27 of the 1963 Act, as amended by the Copyright (Amendment) Act, 1987, providing for a regime of penalties in respect of copyright offences very much more severe than that contained in the existing legislation. Specifically, it provides for fines of up to £1,500 per offending item or up to one year's imprisonment, or both, in respect of summary convictions for copyright offences in the District Court, and for fines of up to £100,000 or up to five years' imprisonment, in respect of convictions for copyright offences on indictment in the higher criminal courts.

It is not proposed to amend the specification of copyright offences contained in section 27 of the Copyright Act, 1963, in the context of the present Bill. This specification can only be modernised in conjunction with the general modernisation of copyright legislation, and will, therefore, be dealt with in the forthcoming Copyright and Related Rights Bill.

The Copyright (Amendment) Bill, 1998, is a limited measure, but it must be judged in the context of the Government's copyright policy as a whole. Taken in conjunction with recent Garda successes in combating copyright piracy — on which I trust the force will accept my heartiest congratulations — and with our commitment to urgent and fundamental reform of the copyright system as a whole, the Bill should be seen as a clear signal of the Government's determination to see that a modern, effective and efficient system of protection is provided for copyright and related rights, and that those who would profit unfairly from the fruits of the intellectual labours of others are confronted and defeated.

I am confident of the shared determination of Members to progress this major area of the reform of our law which is of vital importance to the continued health, not only of our cultural life, but of Irish industry in the information age. I look forward to positive and constructive debate, not only on this Bill, but on the greater measure of copyright reform soon to come before this House, of which the present Bill is the merest harbinger.

I commend the Bill to the House.

Mr. Stanton

Fine Gael is not opposing this Bill and will co-operate fully with the Government on it. As the Minister pointed out our copyright laws date from 1963 with some minor amendments in 1987. In light of the advances made in the past 36 years, and especially in recent years in the area of information technology, we have a great deal of catching up to do. I understand it is intended to introduce the Copyright and Related Rights Bill shortly and that it will be one of the largest items of legislation ever introduced. Given the contents of this Bill it will be challenging and I look forward to getting involved in its detail.

This Bill is, by comparison, a small one and strives to make minor changes in the law. It is a precursor of what is promised. I understand the Copyright (Amendment) Bill will be incorporated in its entirety into the Copyright and Related Rights Bill when introduced and eventually passed. Why is the Government introducing the Bill at this time? As pointed out earlier there has been a dearth of legislation from the Minister's Department during the year. While the promised Bill has taken much time and effort, it would have been more useful if all the work could have been presented together. The truth is that the Government was threatened with legal action and possible sanctions by the United States because of the state of our legislation. We could have been dragged before the World Trade Organisation because the Americans had complained that Ireland had not complied with certain trade related aspects of the intellectual property agreement.

This situation has forced the Government to introduce this stop-gap measure in the hope of avoiding a most embarrassing series of sanctions. Will the Minister confirm that this finger in the dyke reaction will be enough to satisfy the United States, and possibly others, or are we wasting time debating this Bill when we should be working on the serious business of updating all the law in this area?

We will not oppose this Bill and will not table amendments. However, I ask the Minister of State and the Government to take on board and consider an aspect of the law which is a fundamental part of the Bill we wish to have amended in the legislation which is to follow. The change I am about to suggest is such a major issue with the Government parties, Fianna Fáil in particular, that I feel it will not be contemplated. Nevertheless, Fianna Fáil has abandoned many of its so-called core values in the past few years and I hope another change in direction will be made.

In the past few weeks the Minister for Education and Science talked about putting students who cheat in examinations into jail. The Minister for Justice, Equality and Law Reform who is known as the Minister for zero tolerance seems to see jails and prisons as the only answer to all crime. In this Bill we see more of the same. Fines or prisons are the sanctions to be imposed on a person found guilty of an offence under section 27 of the Principal Act, amended by the 1987 Act.

While we welcome the increase in severity of penalty, on summary conviction, from a fine of £100 to £1,500 and that the courts can also impose an alternative sentence not exceeding 12 months — whereas up to now it was six months — with the power to impose both a fine and a prison sentence, is this the best method? We believe prison should be reserved for the most dangerous criminals, those who need to be taken out of circulation for the good and safety of society. To put people into prison because they cannot or will not pay a fine adds to the overcrowding of prisons and leads to the revolving door syndrome. The law breaker who does not pay a fine ends up in jail for a very short period. This incarceration costs the State a great deal of money in time, manpower and resources and at the end of the day the lawbreaker is out on early release, not having paid a fine.

I came across a case recently where a gentleman was incarcerated in Cork prison for two days because he could not pay a fine of £500 for a minor offence. This individual is one of the most harmless people I know and yet was incarcerated with dangerous criminals, rapists, murderers and thugs. Would community service orders or taking money from him, in instalments, have served him and society better and freed up valuable prison space? While I am digressing slightly we should take cognisance of this in all legislation. To put people into prison for non-violent crime is reaching back to the time of the debtors' prison in Victorian times when people were locked up and the key thrown away until they paid the debt. Perhaps the Minister will comment on this?

I ask the Minister of State and the Government to consider including in future legislation, as in this legislation, the explicit provision that money be deducted from wages, social welfare benefits or whatever, in instalments, and that community service orders be imposed in place of custodial sentences where it is clear the convicted person would not be a danger to society. This would cost the State very little when compared with the cost of keeping a person in prison and the law breaker would pay much more in financial terms or by doing good for society. God knows there is a great deal of community service that could be done. We would have fewer people in prison and those sentenced would have a greater chance of serving their sentences which would do away with the revolving door system. This would require a major about face on the part of Fianna Fáil, but we live in hope.

We will not oppose the suggestion to increase the severity of penalties on conviction or indictment. The other major change that will be implemented under the Bill concerns the presumption of ownership. In the past, the onus was on the person who could be identified by name, mark or work if challenged to prove ownership. The provision before us today turns this presumption on its head and the onus will now be on the defendant to prove that the plaintiff is not the owner or exclusive licensee of the copyright. That the copyright will now presume to subsist in the work unless the contrary is proved is a welcome move.

This legislation is a double-edged sword. I put down a marker for the Minister in regard to the major legislation that will be forthcoming. We have a rich tradition of music, song and dance but with modern digital recording methods there is a danger that large multinational companies will come here, digitise our traditional music, subsequently claim copyright and, in effect, "steal" our birthright.

The Minister and Deputies will agree that Irish music is currently the "in thing" since Riverdance and other such phenomena. Irish music is fashionable world-wide and is very valuable but we must move swiftly to protect it. I hope that will be taken into account in the Bill currently being prepared and that the Government will take its responsibilities seriously to protect our heritage.

On the question of licences, in the main, schools are licensed and they pay their dues but there are question marks over the role of universities. Do they co-operate with the licensing authorities and will the Minister, in the forthcoming legislation, act to ensure that all copyright holders are protected and that nobody can circumvent the copyright legislation as it is currently enacted?

This minor legislation, which we will not oppose, is a precursor of what is to come but it contains two or three important measures. We do not intend to table any amendments but await the forthcoming legislation which we hope will be produced as quickly as possible because we have waited long enough for it. Now that the Ministers have taken time off from getting their photographs taken here, there and everywhere, we might see some real work emanating from that section of the Department.

Mr. Broughan

I thank the Minister of State, Deputy Kitt, and his officials for briefing the Opposition in recent days and giving us an insight into the way the Department is preparing the major copyright Bill which will be brought forward later in the year and to which we look forward. In that context, the Labour Party is happy to accept the Copyright (Amendment) Bill with a small number of technical amendments.

The Bill before us is basically a sticking plaster measure. It was brought forward primarily as a result of the threat of legal action from the World Trade Organisation in Geneva. Six months ago the Government suffered major embarrassment when the US Government publicly threatened us with legal action because of our failure to meet the basic copyright standards of the Trade Related Intellectual Properties Agreement, the TRIPs agreement. I raised this matter in the House at the time, along with Deputy Stanton and others. It is extraordinary that it took us such a long time to come to grips with a fundamental aspect of our changing economy and society.

I spoke this morning to a prominent person in business, who also has a track record in the public service, and he was most irate that for three and a half decades, this issue lay asleep like Rip Van Winkle, and nobody thought it was sufficiently important to bring it to the attention of the then Minister. At the last possible minute before our lawyers were dragged into court by the Americans and other countries, we brought forward this minor legislation to plug two of the major loopholes. We can now offer our American colleagues the promise of a major copyright Bill later in the year.

People in the IT community and the cultural industries, about whom I will speak later, would have expected that legislation covering a such a major development in those industries would have been updated earlier. I am not criticising the current Minister. We should have had our eye on the ball over the years, as the prominent person to which I referred said to me this morning during a meeting on the north side of Dublin.

Since the early 1990s, there has been a series of highly documented court cases in both the American and British judicial systems which clearly indicated that significant new safeguards were necessary to protect creative thinkers in our country and creative works brought into Ireland as a result of the major successes of the IDA.

A number of cases spring to mind concerning the development of the World Wide Web, for example, Playboy v. Webbworld Inc. in the United States and the Shetland Times v. Dr. Jonathan Wills, two cases mentioned in a recent interesting article by Mr. Denis Kelleher in The Irish Times. That article indicated that over significant areas a large body of the population did not understand they could click on their computers, call up original and creative work and call it their own to use, distribute and make money from as they thought fit. The legal system has moved ahead in that regard.

The Minister mentioned that his colleagues in the Department of Justice, Equality and Law Reform have had some success in this area, particularly the Garda Síochána and the National Bureau of Fraud Investigation. Last March Ms Justice Laffoy dealt severely with a case taken by four major US film corporations who sued a County Meath businessman because of the way in which he had violated their fundamental copyright and utilised their product for profit. Such cases alarmed our American friends, the source of much inward investment. If they went unchallenged, it would have posed an incredible danger to the Celtic tiger and Ireland's economic development.

The Web and the Internet have led to new industries and business. We have been lethargic in trying to facilitate them. In recent days there has been the case, which was raised by the Labour Party and the Fine Gael Party, of the "Mirror" site which Microsoft wished to develop in Ireland. That project failed apparently due to the lack of bandwidth in production here. It has been said in the past that companies like Microsoft were also anxious about the fact that their original and creative programs, which we all use in daily work, were not adequately protected by Irish law. That may have been another factor in Mr. Gates and his executive team deciding recently to put that interesting development on hold. I hope Minister Harney will be able to secure such a mirror site from a company like Microsoft at some stage and to encourage the other famous companies from California to locate here.

As the House will be aware, San José, one of only two cities with which Dublin is twinned — the other is Liverpool — lies in the middle of Silicon Valley. The Taoiseach started the special relationship between Dublin and San José 11 years ago. As a result, interesting connections have been made with the likes of Intel, Hewlett Packard, etc. . It is also important to encourage further developments with software as well as hardware firms. The Bill is welcome in that it begins to move into an area protecting this kind of work.

We noted also the success of the development of the software translation industry in Ireland. I would give the Government some credit in that regard. The Leader of the Labour Party, Deputy Quinn, played a fundamental role in this in his years in the then Department of Enterprise and Employment and the Department of Finance. As the House will be aware, Ireland's share of the European software market in this valuable niche industry is about 75 per cent. As I understand it, the companies translate into all the European languages the major developments, particularly of American but also of British computer and software industries. It is an extraordinary success story, which is not noted by the bulk of the population of the country. It is critical that we protect the producers who are feeding Ireland's companies with the software programs which are then distributed throughout Europe — we are the second biggest producer in the world after the US — and the inward investment which they represent. The ever changing nature of Irish industry should be provided for carefully in this regard.

Deputy Stanton correctly mentioned the wonderful explosion in the development of the cultural industries in recent years. We have seen the success of Irish music and film. This success was reiterated in recent weeks and a member of practically everyone's family or someone in their immediate circle has been an extra or actor in a film around Dublin. That wonderful success story needed some fundamentally stronger law in order to ensure ongoing success and to protect acts such as Riverdance, the colossal output of Irish traditional and rock musicians, and the film industry. In the previous Administration, Deputy Michael D. Higgins provided much information on what he sees should be protected. When the major Bill is introduced, the Labour Party will utilise Deputy Higgins's expertise in this regard.

After a year we have a short Bill before us comprising four sections. It provides for increased fines for breaches of current copyright legislation, and rightly so, and it reinstates ownership rights. I welcome the major provision which makes a presumption in favour of the producer of original works and seeks to protect them in particular. Even in areas where an author is dead, it seeks to protect the estate in that regard.

The current legislation, even taking into account these amendments, remains among the most inadequate and antiquated in the European Union. It reflects the capacity for breaches of copyright under advancements in electronic publishing, digitalisation and technology. I look forward to the more elaborate Copyright and Related Rights Bill, 1998, which the Minister has promised. I understand from the briefing that it contains about 450 sections. It is understandable that it requires much preparation and worldwide research to make that new Bill as watertight as possible. I look forward to further briefings on that Bill this summer and to a fundamental and full discussion of it in this House.

The Copyright and Related Rights Bill, 1998, is a most important piece of legislation which will determine the ability to deal effectively with the future of Ireland's world share in the information society. Jobs and livelihoods in Ireland depend on the ability of the Department of Enterprise, Trade and Employment to bring forward effective legislation on copyright. The Copyright Act, 1963, which the Bill before the House amends, simply allows the owners of copyright in literary, music and artistic work to control how that work is copied and used. From the references to broadcasting transmission, for instance, it is clear that the Act refers to an earlier time almost before television, never mind computers.

With the existence of many websites and the ease with which an individual can set up a site, Ireland's copyright law has become weak and, in many circumstances, irrelevant. In furnishing a website with information, it is often easier to copy information from publications and ignore completely the copyright attached rather than commission new information. This practice of copying information from books and magazines without permission from the owner of the material is unfortunately widespread. Unless we provide adequate legislation to cover copyright on the Internet, we could be left with a situation whereby a person who provides the technical support on the Internet to a website owner may become liable for breaches of copyright.

The inability of the Minister to bring forward copyright legislation demonstrates a clear lack of organisation and awareness of the new technology. Apart from the fact that this Bill fails to deal adequately with a range of copyright matters, there are one or two technical aspects on which the Labour Party is tabling brief amendments.

At a recent meeting in IBEC headquarters attended by the majority of organisations interested in copyright, including the NUJ, a proposal was adopted to set up a one stop shop covering all aspects of copyright relating to original creative material, the written word, recordings, graphical software, etc. The idea is that a one stop shop would offer other parties interested in purchasing copyright goods the ability to do it all in one place thus reducing red tape and cutting significantly the amount of time needed to secure permission to use the material. I ask the Minister, if he has not already considered that matter for the major Bill, to contact IBEC, look at the proposal and see how it could be incorporated.

That said, and with those caveats, I am happy to accept the Bill with minor technical amendments which the Labour Party is proposing.

Debate adjourned.

Dáil Éireann debate - Thursday, 28 May 1998