We were discussing amendment No. 15 in the name of Deputy Rabbitte which relates to section 23. I concluded my earlier remarks by stating that my position as outlined on Committee Stage remains the same. Section 23 is a reasonable compromise between the 1963 legislation and the situation which applies in the UK. I reiterate that the position of freelance journalists is in no way impeded by this measure. That is the position I hold in respect of section 23 and I will be glad to deal with any questions Deputies may wish to pose.
Copyright and Related Rights Bill, 1999 [ Seanad ] : Report Stage (Resumed) and Final Stage.
This matter is somewhat superfluous. I am probably correct in stating that most of the journalists to which the section refers are contracted to their employers. I assume their contracts would take into account many of the issues under discussion. Will the Minister of State clarify whether the provisions in the Bill override a contract between a journalist and his employer or is the opposite the case?
Deputy Rabbitte's amendment states that "the author shall be entitled to the copyright subject to any agreement to the contrary." If that is the case, I am sure proprietors of newspapers and journalists would ensure all matters of interest to them were dealt with in attempting to reach agreements on contracts. Perhaps, therefore, we have no business interfering with that type of arrangement.
I wish to ask a number of further questions – the Minister of State addressed some of them, to a certain extent, on Committee Stage – about the moral and integrity rights of journalists in respect of works they might produce in the course of their employment by newspapers as staff journalists. These people are, perhaps, more concerned about the rights to which I refer than they are about their economic rights. The Minister of State has gone part of the way in trying to address the concerns of both sides and has upset both sides as a result. However, he seems to think that this is a good thing. Will the Minister of State indicate how a person's moral, integrity and paternity rights come into play in respect of the copyright issue?
When the Bill was published the owners of the national newspapers were upset about the way it was worded, while journalists were quite satisfied on that score. However, when the Minister of State amended the Bill in the Seanad the journalists became less satisfied. The Minister of State has tried to steer a course midway between the positions held by the newspaper owners and the journalists in this instance.
In my opinion a number of the arguments about people's concerns were raised on foot of a misconception that different kinds of rights existed under the 1963 Act. For example, a number of photographers who wrote to me indicated that they thought they had certain rights, which they never needed to exercise, under the 1963 Act. However, the Minister of State, when commenting on photography, indicated that the effect of the provision in section 9 of the Copyright Act, 1963, which includes photographs in artistic works for the purposes of affording them copyright protection, assigns the copyright in photographs to the owner of the film or the photographic medium upon which they are taken.
Under the 1963 Act, if staff and freelance photographers were supplied with the material on which to make their photographs, the copyright automatically belonged to the newspaper which provided such material. I understand that this arrangement was normal at a certain stage but I do not know whether it still applies. My main point is that photographers, staff and freelance, working for particular newspapers surrendered their ownership of copyright when they used material provided by said newspapers when taking photographs.
I suspect that these people – a number of them have been gracious enough to admit it – had very little knowledge of their actual rights under the 1963 Act.
The Deputy is making her second contribution and her two minutes are exhausted.
This is my first contribution in respect of this amendment. Under the circumstances, the wording the Minister of State has introduced will not satisfy everyone. However, I am satisfied that the position of freelance photographers and journalists has been clarified. I hope that the right of staff journalists and photographers to submit their work to media outlets other than newspapers and periodicals will be clearly set down in law.
It is essential that the integrity of photographers' work is preserved. I hope the Minister will inform me that in regard to abuses of photographs such as digital stitching, moral rights will be sacrosanct. Will he confirm that staff photographers will have a comeback on their employers if photographs are manipulated by the employers?
I hold strong views on this issue and cannot understand why the Minister interfered with the traditional position. The Minister summarised that position earlier:
I remained convinced of two points, first, that the old exception which favoured print journalists over all other classes of employee was anomalous, unjustifiable and could not be continued and, second, that at the same time, some degree of recognition for the long-established rights of employee journalists should be maintained, in all justice.
If the Minister were in charge in Northern Ireland, we would never witness any conflict there.
I have some reservations about this matter. Why can print journalists not be favoured over other employees? After all, they are the people who create the work. The work is not created by the inputter, the in-house clerical employee or the printer, although with the advent of modern technology, we no longer have printers. To date, copyright was vested in the journalist or the newspaper or publication for which the journalist worked.
An Irish Independent journalist might be covering the Euro 2000 final. To date, if The New York Times felt the final was worthy of coverage, that journalist could string for The New York Times, be paid for his or her work and retain copyright. The Minister is now changing that position. I am not suggesting that every journalist will be affected as that is transparently not the case. However, a small number of journalists and photographers will be affected.
Deputy Owen spoke about the need for photographers to be able to maintain the integrity of their work and that integrity is being unnecessarily put at risk here. Photographers and photographs are included in the authorship section, section 21, but they are not included in the duration sections, 24 to 31. Notwithstanding the Minister's earlier comments, I am concerned that this legislation does not protect photographers to the extent that they should be protected, nor does it protect them to the same extent as other journalists.
The Deputy has far exceeded the two minute limit. As the amendment is in his name, he will have an opportunity to contribute again.
Deputy Rabbitte spoke about traditional rights and the current position. I made the point on Committee Stage that we are referring here to employee journalists who should be treated in the same manner as employees in any other business. This legislation also deals with other aspects of the Irish economy, particularly the software industry. The employees of a software company work in a similar environment to newspaper employees and they should be treated equally. Many freelance journalists have their own contracts with employers and will not be restricted by this legislation in any way. We are providing that employee journalists will have limited rights to use material outside the newspaper sphere, of which examples were provided on Committee Stage, and I believe that is a reasonable compromise.
Deputies Stanton and Owen referred to integrity rights. I remind Members that an exception to integrity rights is outlined in section 107. Section 107(b) refers to a work made for the purpose of a newspaper or periodical.
On the issue of photography, I circulated Members with an explanatory brief on this matter in advance of Report Stage. This is a complex area which requires further consideration in the next two years as we approach the implementation of the forthcoming EU directive on copyright in the information society. I assure Members that I intend to monitor this situation. Issues have arisen in regard to photography which must be dealt with prior to the implementation of the directive.
I ask the Minister to be brief.
Unlike the position which prevailed in the 1963 Act, where the copyright for a photograph was usually owned by the person who owned the physical negative film on which it was taken, photographers will now start from the position of being recognised as authors of their photographs and, as authors, will be entitled to full economic and moral rights under the copyright law. Employee photographers will be in the same position as journalists under this legislation. I believe that certain moral and integrity right issues require further consideration in the context of the forthcoming EU directive and I assure Members that these issues will be addressed.
I do not have the document to which the Minister refers although I am not saying I did not receive it. I have not read the document which may or may not explain the position to aggrieved photographers, who admittedly have contacted me in greater numbers than journalists, and allay their fears.
Let us take the example of someone working for the Irish Independent who may be an expert on Northern Ireland. There would not be anything unusual about such a journalist being able to sell his or her work to a newspaper in the United States as, to date, they have been paid for such work and retained the copyright. Under the new arrangement, they will not be in a position to have their work published in The New York Times or any other publication because section 23(2) states that an author may use the work for any purpose other than for the purposes of making available that work to newspapers or periodicals without infringing the copyright in the work.
Journalists will no longer be able to make work available to any periodicals or newspapers other than their own whereas they could do that heretofore. A US newspaper which is interested in the Anglo-Irish situation might be very interested in what an expert Irish writer might have to say and would publish his or her article.
The Minister was being casual when he said he outlined examples on Committee Stage. If I recall matters correctly, he only instanced one example of an employed journalist being able to use material for the purposes of writing a book. For example, Fintan O'Toole who is, presumably, an employee of The Irish Times wrote Meanwhile Back at the Ranch, based on his work covering the beef tribunal. He may use the material for that purpose. However, if The New York Times or The Wall Street Journal wished to publish work by Fintan O'Toole, under the new arrangement he would not retain copyright of his work but would be precluded by this subsection.
Why does the Minister wish to introduce this change? The argument that print journalists should not be advantaged over other employees is neither here or there. Journalists who have the ability to create work of substance – I know some of them have the ability to write fiction – and traditionally enjoy the facility of stringing for foreign newspapers will now find their positions changed. I cannot see the reason for this. The Minister clearly cannot see a reason either because my amendment is his original creation. He did not see the reason for the change when the Bill was discussed on Committee Stage and in the Seanad. What has happened to cause him to change his mind? The arguments for change did not come from the select committee or from Members of the House.
Draft legislation was the basis of our discussions. This is one of many changes.
As with the questions of collection agencies, licensing and so on, the Minister has come down predominantly on one side. In this case he has come down on the side of national newspapers and against a small number of journalists, most of whom probably do not realise that their rights are being curtailed. They will know in the future. The only argument advanced by the Minister is that journalists should not be advantaged over other employees. I do not understand the sense in that. The measure will be especially injurious to photographers, given the nature of their work and the usage of photographs, particularly photographs of unique merit.
I do not see why the traditional position should be changed. The measure I propose had the support of the Minister at an earlier stage.
Amendments Nos. 16 and 17 are related and may be discussed together.
I move amendment No. 16:
In page 38, line 35, to delete "copy" and substitute "reproduce".
The Bill does not include a definition of the words "copy" or "reproduce". I am advised that the word "reproduce" is more widely acceptable than the word "copy". If sheet music is photocopied one speaks of copying the music whereas if the music is played and recorded it is said to be reproduced. This provides a loophole for those who may wish to take advantage of it. The word "reproduce" is more all-encompassing than "copy".
In section 38, the Minister uses the term "reproduction right". The use of the word "reproduce" throughout the Bill or a clarification that the words "reproduce" and "copy" mean the same thing would solve this problem. The Minister understands my argument and I ask him to consider the amendments which would close a possible loophole.
To copy something could mean to make an exact facsimile whereas a reproduction need not be an exact copy.
My view is that the term "copy" is inclusive of the term "reproduce". It is a larger and more flexible term and better in this situation. The substitution of the term "reproduce" could undermine the clarity of the term "copy". This view is supported by the office of the Attorney General.
We are talking about the owner of the copyright having the exclusive right to undertake or authorise others to undertake all or any of the following acts: to copy the work; to make available to the public the work or; to make an adaptation of the work or to undertake either of the previous two acts in relation to an adaptation. The word "copy" is better than "reproduce".
My advice is the opposite to the Minister's but I accept his argument. The Minister must take responsibility for the Bill. I am concerned that someone might take advantage of a loophole by reproducing something in a slightly different format and claiming not to have copied it. I do not understand the Minister's argument that the word "copy" is a looser term than "reproduce". I would have thought the opposite.
I move amendment No. 16a:
In page 39, to delete lines 8 to 18.
I move amendment No. 16b:
In page 39, between lines 18 and 19, to insert the following:
38.–(1) Notwithstanding the provisions of section 37, where a person proposes to–
(a) play a sound recording in public, or
(b) include a sound recording in a broadcast or a cable programme service,
he or she may do so as of right where he or she–
(i) agrees to make payments in respect of such playing or inclusion in a broadcast or a cable programme service to a licensing body, and
(ii) complies with the requirements of this section.
(2) A person may avail of the right to play a sound recording in public or to include a sound recording in a broadcast or a cable programme service, where he or she–
(a) gives notice to each licensing body concerned of his or her intention to play sound recordings in public or include sound recordings in a broadcast or a cable programme service,
(b) informs each of those bodies of the date on and from which he or she intends to play sound recordings in public or include sound recordings in a broadcast or a cable programme service,
(c) makes payments to the licensing body at intervals of not less than 3 months in arrears,
(d) complies with any reasonable conditions relating to payments under this section as may be notified to him or her by the licensing body from time to time, and
(e) complies with any reasonable requests for information from the licensing body to enable it to calculate and manage payments under this section.
(3) A person who satisfies the conditions specified in subsection (2) shall be deemed to be in the same position as regards infringement of copyright as if he or she had been the holder of a licence granted by the owner of the copyright in question at all material times.
(4) Where the person intending to play sound recordings in public or to include sound recordings in a broadcast or a cable programme service and the licensing body fail to reach agreement as to fair payment under subsection (2) within a reasonable time, the terms of the proposed agreement shall be referred to the Controller for determination of the amount and terms of payment.
(5) Where the terms of a proposed agreement are referred to the Controller under subsection (4) a person shall not exercise a right conferred by subsection (1) unless he or she–
(a) gives notice in writing to the Controller of his or her intention to exercise the right, and of the date on which he or she proposes to begin to do so, and
(b) applies in writing to the Controller for a determination under subsection (4).(6) On an application to settle the terms of payment being referred to the Controller, he or she shall consider the matter and make such order as he or she may determine to be reasonable in the circumstances and that order shall take effect on and from the date on which the applicant begins to exercise the right, and any necessary repayments or further payments shall be made in respect of amounts which, in consequence of the terms of the order, have fallen due.
(7) Where no request for payment has been made by the licensing body, or where the amount requested by the licensing body is disputed by the person exercising the right then, pending the making of an order by the Controller under subsection (6), the person exercising the right shall pay to the licensing body such amount as he or she considers reasonable, and shall notify the licensing body and the Controller of his or her intention to do so.
(8) A person exercising the right conferred by subsection (1), or who has given notice to the Controller of his or her intention to do so, may also refer to the Controller the question of–
(a) whether any licence condition, notice of which has been given to him or her by the licensing body in question, is a reasonable condition, or
(b) whether any information required by the licensing body is information which the licensing body can reasonably require him or her to provide.
(9) Where a reference is made under subsection (8), the Controller shall consider the matter and make such order as he or she may determine to be reasonable in the circumstances.
(10) A person exercising the right conferred by subsection (1) or a licensing body may apply to the Controller to review any order under subsection (6) or (9).(11) An application under subsection (10) may not be made except with the special leave of the Controller–
(a) within 12 months from the date of the order or of the decision on a previous application under this section, or
(b) where the order was made so as to be in force for 15 months or less or, as a result of the decision on a previous application, is due to expire within 15 months of that decision,
until the last 3 months before the expiration of the order.
(12) Where an application is made under subsection (10), the Controller shall consider the matter and make such order confirming or varying the original order as he or she may determine to be reasonable in the circumstances and any order made under this subsection shall be for such period as may be specified by the Controller.
(13) This section shall not apply in any circumstances where sound recordings are made available to the public by wire or wireless means in such a way that members of the public may access the sound recordings from a place and at a time individually chosen by them (including the making available of copies of sound recordings through the Internet).
(14) Notwithstanding section 145, in this section ‘licensing body' means a society, a company registered under the Companies Acts, 1963 to 1999, or other organisation which has as one of its objects the negotiation or granting of licences to play sound recordings in public or to include sound recordings in broadcasts or cable programme services, either as owner or prospective owner of copyright in the said sound recordings or as his or her exclusive licensee, agent or designated representative and shall include a human person who has the right to negotiate or grant a licence to play sound recordings in public or to include sound recordings in broadcasts or cable programme services, either as owner or prospective owner of copyright in the sound recordings.”.
I move amendment No. 1 to amendment No. 16b:
In the new section 38, before subsection (5), to insert the following:
"(5) In the case of a dispute referred to the Controller under subsection (4), a person shall not exercise the right conferred by subsection (1) unless he or she–
(a) gives reasonable notice to the Controller that he or she has commenced or intends to commence the playing of sound recordings in public and that a dispute has arisen between him or her and the licensing body concerned as to the terms of payment and the exercise of the right; and
(b) applies to the Controller for a determination under subsection (4).”.
I move amendment No. 2 to amendment No. 16b:
In the new section 38, before subsection (8)(a), to insert the following:
"(a) whether any condition relating to payment, notice of which has been given to him or her by the licensing body concerned is a reasonable condition, or"
I move amendment No. 18:
In page 39, between lines 36 and 37, to insert the following:
"(3) There shall be a presumption that material which was published on the Internet may be copied accurately and with an acknowledgement of its source, without formal permission, unless a statement to the contrary is published with the material on the Internet site.".
We are back to the Internet, the information on which is being added to by the minute. We propose that if a person puts information on the Internet, there should be a presumption that the material is public property and can be copied, unless a statement to the contrary is published with the material on the site. Obviously, if a person copies material accurately he or she should acknowledge from where it was obtained, but it can be difficult to find out who puts information on the Internet. It may not be easy to obtain the formal permission that might be required to copy it.
Another problem with material on the Internet is that it can be transient, here today and gone tomorrow. If people come across material on the Internet that is extremely useful to them in their jobs or professions, or in education, they should presume they can copy it unless there is a statement on the site stating that permission is required. That permission can then be obtained by certain procedures and making contact with the copyright owner.
Given the growth of the Internet, this is a useful amendment and I am interested to know the Minister of State's views on it. I hope he has reflected on it since we last spoke.
I support this amendment. We had a discussion earlier about inserting a description of the term "Internet" in the legislation. The Minister said the advice was that he should not. It is incredible that we can have new copyright legislation in the year 2000 without some reference to the Internet. It will be difficult for people to exercise their right of copyright for anything that appears on the Internet. On balance, people who put material on the open channel must assume others will read it and use it if necessary. One pays one's money and takes one's chances if one puts material on the Internet.
I have a great deal of material on St. John's Wort and ginkgo biloba and many other fascinating materials which I copied from sites on the Internet when we were debating the issue of herbal medicines. There were no alarm bells or flashing lights telling me I should not copy the information because it belongs to somebody else. The legislation must be clear so that people are not subject to major international legal cases when a person discovers somebody else has used information he or she had placed on the Internet. One could end up being sued for copying another person's material from the Internet.
This amendment is fair and the Minister could accept it.
As I understand it, this is the existing position and, therefore, it ought to be given expression in law. Otherwise, theoretically, any of us could be sued without our knowledge. Our children access the Internet regularly without any fuss. The amendment is tight in the sense that it requires that an acknowledgement of the source would be made and that unless there is a particular signal that it may not be drawn down, there is a presumption of the right to publish. We should pass this amendment in the public interest and I hope the Minister will be able to accept it.
I acknowledge the references to what we and others, especially young people in third level colleges, copy from the Internet. That is provided for under the legislation because we deal with this under sound recordings where we refer to private and domestic use. We had very lengthy debates about time shifting on this issue and about people recording music on tapes or taping television programmes, with which we will deal later. Use for domestic purposes or private use is covered, which I welcome as one who wants to support the consumer in that case.
At the time of our discussions, I indicated that such an amendment would effectively require rightsholders to observe a formal requirement prior to the access of their copyright rights, which in this case would involve the placing of a statement or notice on the relevant Internet site. I pointed out that imposing formalities of this sort would be contrary to Article 5.2 of the Berne Convention. This is the first time we mentioned that today; the Deputy was probably waiting for me to say that.
I was getting lonely. I think I left it upstairs.
This article prohibits formalities in respect of the enjoyment and exercise of rights. I subsequently raised this matter with the Office of the Attorney General, which agrees that the proposed amendment would be an unjustifiable restriction of the reproduction rights and would infringe Article 5 of the Berne Convention. The downloading of information for private domestic use is allowable as far as we are concerned. This amendment would introduce a formality which, from the point of view of the rightsholder and of the user, makes the situation worse. Therefore, I ask the Deputy to withdraw this amendment.
I have two points to make. I welcome the Minister's statement which I think means that people who use the Internet for private and domestic purposes can copy material from it for their own use. That is to be welcomed. If, for example, a person in the medical field discovers new and useful information on the Internet, which is used increasingly as a tool for disseminating such information, is the Minister saying he or she will not be allowed to copy this information without obtaining permission from the source, unless there is a statement on the site stating it is copyright protected? This is the kind of clarification we are seeking.
Will the Minister of State, who also has special responsibility for consumer rights, make it known to the public at large that they will break the law if they copy material from the Internet?
There may be changes.
Will he make it known to people in business, the medical field, industry or elsewhere who use the Internet in this great technological age – which we and the Government fully support – to download material for industrial, medical, scientific or other purposes, without permission from the person who put it there, that they could be before a court and face criminal prosecution? This is a very serious issue especially where the Minister is saying, and rightly so, that schools, towns, business and the public at large should use the Internet. However, we are still tied with copyright in this case.
We do not want people to be prosecuted. Will the Minister clarify the requirement? He has acknowledged that people do not know the position and are probably breaking the law all over the State as we speak.
I am glad the Deputy referred to this because I can confirm there is an exception for people who copy material for educational or scientific purposes, but I agree this area may change in the years ahead. I refer back to the point I made earlier about the debate at EU level where some countries hold a strong position in regard to rights holders. The Irish position put forward by me and my predecessor has always been to keep the balance between rights holders and users. There are exceptions which relate to private and domestic use and to people who use material from the Internet for educational and scientific purposes.
The Minister referred to what might happen when there are more negotiations. However, people download material from the Internet at present, many of whom are not students or young people. Older people have mastered computing and the Internet and it is a wonderful activity, particularly for those who have difficulty getting out.
It is tremendous.
A constituent of mine in his 70s called me when a new IT product came on the market and he complained about not being able to access it and about not knowing the costs involved. The Minister of State does not recognise that between now and the conclusion of the negotiations before something more is done in this area, anybody innocently downloading material from the Internet could be subject to a legal action.
Section 38(2) provides a reproduction right to the copyright owner. There should be a right of the owner to copy a work or to authorise others to do so which shall be known as the "reproduction right". However, anybody who trawls through the Internet to find out who wrote an article on St. John's Wort, for example, does not call the author in a university in Outer Mongolia or Malaysia to ask if he or she can download the article because there will be a debate on the subject in Parliament. That is work related and is not educational. The wording in this section does not cover an individual downloading material form the Internet, unless a statement to the contrary is published with the material. The Minister of State may think he has a few years to play with this but this is a pressing issue.
I thank the Deputy for her realistic assessment of what is happening. If an individual published something on the Internet, there is a presumption that it will be downloaded. I agree that the Internet is a tremendous development because people who need such information quickly have access to information, whether they are politicians or students. It is a tremendous facility. As Minister of State with responsibility for a number of areas, including consumer affairs, I support that right and will ensure on behalf of the Government that it is protected. I was trying to look ahead and flag the issues which will be raised at EU level, to which the Deputy referred.
For example, there are many possible developments regarding the downloading of music in terms of implementing rights protection measures. The music industry is availing of the Internet and the rights of the rightsholder, the artists, etc. must be considered. That will need to be addressed. There is a huge ongoing debate in the music industry. The Government and I seek to maintain a balance between the consumer and the rightsholder. I am highlighting possible issues that will be addressed in future.
I will give the Minister of State the benefit of the doubt that he will come back to this issue again. I have sympathy for musicians. Madonna was in trouble recently with her new single.
Amendments Nos. 22, 23, 24, 25, 26 and 27 are related to amendment No. 19 and may be discussed together by agreement.
I move amendment No. 19:
In page 39, line 39, after "following," to insert "and the Acts described should apply equally to the original and to any copy or copies".
This amendment was also discussed on Committee Stage. The Minister of State stated that reference to copies would include the originals. Some people feared that originals could be used or abused in some way. If the Minister of State assures the House that copies and originals are the same, I will be happy. Music was referred to earlier. It is possible to create compact discs which are replicas of the originals. We want to make clear that copies include originals. If many copies are produced, where is the original? These are then made available to the public. I will be happy if copies and originals are considered to be the same. The Minister of State said he would examine this and come back to us.
The advice I was given on Committee Stage following consultation with the office of the Attorney General is the same. He advised that in law the term "copy" includes the original which in effect is the first copy. The term was used in the Copyright Act, 1963, without any difficulty arising, and I do not consider it necessary to accept the amendment. In any event section 39(2) specifically provides that: "References in this Part to the making available to the public of copies of a work shall include the making available to the public of the original of the work". I hope that meets the Deputy's needs.
I move amendment No. 20:
In page 40, line 19, after "subsection" to insert "retains control over the copies so made available".
Section 39(4) states: "..where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work.". An individual could use a photocopying machine at work but copies could be made elsewhere in the same building. This refers to people retaining ownership and control over the copies and inserted in the subsection.
The danger of the wording in this subsection is that if I provide copying facilities and I am not looking over the shoulder of the person making the copies, when he or she leaves the copying room they become infringing copies and I carry the can and am blamed. We wanted to make sure that in putting the blame on the person who is providing the facilities, that person maintains control over the copies, and that they equally have responsibility for the copies. If the person left the building, however, one could have a situation whereby a totally innocent person who, in the words of subsection (4) "fails to remove that infringing material as soon as practicable thereafter, that person shall also be liable for the infringement". The amendment seeks to keep the person who is making the facilities available married to, or in touch with, the copies so that they would end up becoming a party to an act of infringement. It is in fairness to the person who is providing the facilities.
I am very conscious of the kind of situation the Deputies are referring to, but we are talking about the electronic media here, not a photocopier. The subsection refers to the "notify and take down" provisions of the Bill, which are designed to allow a rightsholder to place an effective obligation on a person in control of a computer facility, such as a website, to remove infringing material from it, or become liable for infringement themselves. Since the act of taking down the infringing material would both satisfy the requirements of the subsection and effectively place it beyond the control of the person with obligations under this provision, I do not believe this amendment is necessary to protect innocent parties, although I appreciate what Deputies have said in relation to that matter. I would be afraid that it would confuse the meaning of the subsection with no real benefit in return and, therefore, I would ask Deputies not to press the amendment.
This section deals with the electronic media. If somebody photocopies infringing material, they should be pursued legally, perhaps under another section of the Bill. This section, however, deals with the "notify and take down" provision.
Is the Minister saying that the onus rests with the person who provides facilities referred to in subsection (3), and that the full responsibility rests with them?
Is he saying that in providing those facilities they are also responsible for making sure that the person making the copies using the original person's facilities does not do anything illegal with those copies?
Yes, that is right.
Is he saying that if I decide to make facilities available for someone to make copies, I must carry the onus of responsibility that the person is doing something legal and that they will not break the law, otherwise I carry the can?
If the owner notifies the person providing the service, in that case one is liable—
—but only if one is notified by the owner.
If the copying facilities one is providing are going to be used by somebody to make copies, and if one is notified of that, it might be infringing?
If one is notified that they are being used.
Take the scenario where I have an electronic copying facility and I allow someone to make copies of something, which I am told is a piece of music for the local school play, what happens if that person takes the copies away and, subsequently, the owner of the copyright asks me, "Do you know that your facilities are being used to make copies which are being sold in the marketplace down at the Phoenix Park?" I did not know that when I allowed them to make the copies, so am I guilty? Can I be prosecuted because I am liable for the infringement in that instance, or must the owner of the copyright tell me before I make the copying facilities available?
I will come back to the Deputy about that matter after Deputy Stanton has spoken.
Earlier I was a bit confused about this and I am sure the Minister will understand why. I assume we are talking about Internet service providers.
That is right.
I also assume we are talking about people providing this facility, such as Eircom or others. If somebody's material is being put on this service in breach of copyright, it can be disseminated on the web. If Eircom receives notification from the owner of the copyright that they must remove the work and they fail to do so, they are liable for prosecution – that is provided they retain control over the matter, but the web is so interactive that it can go from one service provider to another. This brings us back to the issue of technology. I can see what the Minister is getting at, but will he clarify whether we are talking about Internet service providers more than other matters?
Yes. In the situation the Deputy has outlined, this refers to Internet providers. I am concerned that inserting the Deputy's other reference would confuse the situation. For that basic reason I am asking the Deputy not to press the amendment. There is another angle. If somebody is photocopying the infringing material they are breaking the law, so introducing that element does not help the section which deals with the electronic media.
I move amendment No. 21:
In page 41, between lines 6 and 7, to insert the following:
"40.–(1) Notwithstanding any other provision in this Act, a person who causes a published sound recording to be heard in public or to be broadcast or to be transmitted to subscribers to a diffusion service shall not infringe the copyright in such sound recording provided–
(a) he or she pays equitable remuneration to the owner of the copyright subsisting in the recording; and
(b) in the event of a dispute as to the amount of remuneration payable under paragraph (a)of this subsection, he or she undertakes to refer the dispute to the Controller and undertakes to pay to the owner of the copyright the amount of remuneration determined by the Controller to be equitable.
(2) For the avoidance of doubt, any reference to the owner of the copyright in a sound recording in this Act shall be taken to include a reference to the agent or licensee of such owner.
(3) It shall not be necessary to make an advance payment of equitable remuneration to the owner of copyright in a sound recording, but said remuneration will be recoverable as a simple contract debt.".
It was taken up earlier.
It was already discussed with amendment No. a7a.
I move amendment No. 27a:
In page 42, line 40, to delete “section 37(1)(a)”and substitute “section 37(1)(c)”.
This is a technical amendment to correct a mistaken cross-reference.
We have to keep slipping from one set of amendments to another.
I appreciate that.
You will have to bear with us, a Leas-Cheann Comhairle.
If it is of any help to Members I can read out for them which list the amendments are from.
That would be helpful.
I will read it out if it is on the composite list, and if it is not on the composite list I will not read it out.
What is the date of the composite list?
I think that is 20 June.
The other list is dated 31 May.
The other one is May, yes.
Amendments Nos. 28, 29 and 30 are related and may be discussed together by agreement. For the information of Deputy Owen, we will not come to any more amendments on the composite list until No. 43.
I move amendment No. 28:
In page 43, line 27, after "making" to insert "or the issues of copies thereof to the public".
This amendment is a clarification. The section deals with importing material into the State. Section 43(2)(b) states that a copy shall be an infringing copy where it has been or is to be imported into the State, and its making in the State would have constituted an infringement of the copyright in the work concerned, or a breach of an exclusive licence agreement relating to that work. We have been told that it was important to introduce that provision, and that not just the making of it but the issuing as well would also have been an infringement.
To clarify this, my understanding is that these amendments aim to impose copyright sanction on distribution of books in the State, which does not take place within the normal channels of supply. I am advised that this point was raised by CLE, the book publishers association, at the hearing in November last of interested parties, hosted by the Select Committee on Enterprise and Small Business. My Department sought legal advice on this point from the Office of the Attorney General. It advised that the distribution right in physical copies of work is governed by particular provisions of EU law. The office took the view that changes along the lines suggested in the amendments could infringe EU law regarding the distribution right, which does not permit the Internal Market of the EU and physical copies of works to be partitioned by copyright law provisions. Accordingly, I am not in a position to accept the amendments.
The amendments could breach EU law on distribution rights. If work is made available in one state, it is legally available in other member states. This is the conflict. An EU regulation on distribution rights would be infringed by the insertion of the amendments.
Amendment No. 30 seeks the insertion of "or exhibits in public or distributes" in page 44. There is an old adage that there is more than one way to skin a cat. Section 44 states:
A person infringes the copyright in a work where he or she without the licence of the copyright owner–
(d) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright.
The amendment seeks to insert, after "makes available to the public.", "or exhibits in public or distributes". There is a difference between making material available to the public and exhibiting material in public. A person could exhibit material in public which people will not buy or take away with them. However, the showing of material in public could be of help to the copyright owner. There is a subtle difference between making material available to the public and distributing or exhibiting material in public.
The provision must be clear. I would assume the phrase "makes available to the public" meant material was available in a shop or was being handed out to members of the public. Has the Minister received good advice on this matter? Is he satisfied with the position? Will he explain the position with regard to European law? Is it the case that a work of art or literature brought from another EU country could not be made available to the public without infringing the copyright? Is the Minister suggesting that the inclusion of the amendment would prevent it being made available to the public?
My information is that distribution rights are covered under EU regulations and copyright law cannot be used to interfere with those rights. There would be an exhaustion of rights in the context of distribution rights. The amendments attempt to deal with distribution through copyright legislation, but an EU regulation governs this area. My advice is that cannot be done.
We accept the Minister's expert advice on this matter. However, a question arises if, for example, a person has access to a bootleg printing press abroad, produces books, brings them into the State and distributes them. Perhaps the Minister could clarify if that person would be in breach of some distribution law but not necessarily copyright law. Would copyright law not come into play? The main concern of CLÉ is that people would not get away with printing a book abroad, bringing it into the country and distributing it. This is the type of query that has been raised.
Bootleg copies produced in another Berne Convention country would be covered under Irish copyright law. There are protections in that regard. My problem is that the amendment relates to a different area of law in terms of the legal importation area and parallel imports. The amendments do not fit into copyright legislation which is complex enough already. My advice is that the matter relates to a different area of legislation regarding distribution. The amendments would interfere with legal aspects in that area. However, it is important to protect rightsholders with regard to bootleg productions and this is covered under Irish copyright law.
Did the Minister of State have discussions between Committee and Report Stages with the CLÉ organisation on this important issue?
I will allow the Minister to answer briefly but I remind Deputies that we are moving away from the Standing Order covering Report Stage. The Minister has two opportunities to speak and can deal with questions while one of the proposers of an amendment has three opportunities to speak.
I did not have such discussions. My contribution was based on our legal advice which is clear.
I move amendment No. 31:
In page 45, to delete lines 39 to 45, and in page 46, to delete lines 1 and 2.
The purpose of the amendment is to excise section 49(3) which relates to fair dealing and stipulates that the copying by a person is not fair dealing in the circumstances prescribed in paragraphs (a) and (b). One relates to more than three copies while the other relates to more than one copy. It is an entirely unnecessary restriction. It goes too far in terms of what the Minister is seeking to do. The regulation is so carefully prescribed in terms of all the detail that I do not understand why it is necessary to include it again and the amendment seeks its excision.
We are going over ground covered on Committee Stage, but I gave the matter considerable thought since the last discussion. Deputies should be aware that the Bill introduces exceptions in favour of librarians for the first time in Irish law. However, these exceptions must be limited and in line with the three step test outlined in Article 9.2 of the Berne Convention – I am reminded of "The Three Steps to Heaven".
However, the three steps are that exceptions must be specific and limited; they must not conflict with the normal exportation of a work; and exceptions must not unreasonably prejudice a legitimate instrument of the author. This is the position and I am not convinced that opening up the fair dealing provisions to librarians beyond that proposed in section 49 (2) would be acceptable within the terms of the convention. In any event, these exceptions will be kept under review. If significant problems arise for librarians in the future, I will reconsider the matter. I assure the Deputy that I will monitor the situation closely.
I do not understand the reasoning behind constraining librarians or archivists in this fashion. The Minister mentioned the Berne Convention. This was cited on Committee Stage as a "catch all" measure which required the Minister to do certain things. However, the Minister is in the driving seat and I know when I am beaten.
Amendment No. 32. Amendment No. 33 is an alternative and amendments Nos. 120 and 138b are cognate. Amendments Nos. 32, 33, 120 and 138b may be discussed together by agreement.
I move amendment No. 32:
In page 46, lines 7 and 8, to delete "reasonably justified by the non-commercial purpose to be achieved" and substitute "which will not unreasonably prejudice the interests of the owner of the copyright".
The Copyright Act, 1963, uses the term "fair dealing" in relation to certain copyright exceptions but does not define that term. In the interests of clarity, the definition of this term has been included in the new Bill at section 49(2). This definition was based on wording used in the EU database directive. However, having considered this matter further, I am of the view that this definition which includes the phrase, "to an extent reasonably justified by the non-commercial purpose to be achieved", could be deemed to be too restrictive, especially in the case of fair dealing for the purpose of criticism or review which arguably has a commercial aspect to it. This is also the point raised by Deputies Owen and Stanton in their amendment.
Accordingly, I propose amendments Nos. 32, 120 and 138b which I consider clarify the meaning of the term "fair dealing" for the purposes of the relevant exceptions of copyright, performers' property rights and database rights, respectively, and which is not overly burdensome on the user, while protecting the interests of rightsholders. I am responding to points made by Deputies on Committee Stage and I thank them for their suggestions. This will improve the Bill.
I accept the amendment. It gives more flexibility than was there heretofore.
I am delighted this has happened because it seems to have opened it up more. We were worried about that on Committee Stage. I thank the Minister for tabling his amendment.
I move amendment No. 34:
In page 46, between lines 31 and 32, to insert the following:
"(4) Fair dealing with a sound recording by a person for private and domestic use and for non-commercial ends shall not infringe any copyright in the sound recording or in any work or right included in such a sound recording.
(5) In this Part, ‘fair dealing' means the making use or copying of a sound recording or any work included in such a sound recording which has already been made lawfully available to the public, for a purpose and to an extent reasonably justified by the non-commercial purpose to be achieved.".
I would like to hear the Minister's comments on this amendment.
When this amendment was first proposed on Committee Stage I stated that it appeared to provide for a general private copying exception on sound recordings under the heading of fair dealing. Having considered the matter further, I remain of the view it is inappropriate and unacceptable under international law which would regard it as a serious interference with the normal exploitation of protected material by rightsholders. I cannot, therefore, accept the amendment. We discussed this with the Attorney General's office and it agrees it would breach international law.
We do not want to breach international law.
Amendment No. 35. Amendment No. 36 is related and amendments Nos. 37 and 38 are alternatives to amendment No. 36. Amendments Nos. 37 and 121 are cognate. Amendments Nos. 35, 36, 37, 38 and 121 may be discussed together by agreement.
I move amendment No. 35:
In page 46, to delete lines 32 and 33 and substitute the following:
"(1) The copyright in a work is not infringed by its incidental and unintentional copying in a photograph, sound recording, film, broadcast or cable programme.".
I would like to hear the Minister's comments on this amendment, although he may have covered it already.
We had a debate on this issue and I would like to think we had done something about it. On Committee Stage Deputies were concerned that the phrase, "deliberately included", would render this exception meaningless and suggested amendments in this regard. Having considered the matter further and in consultation with the Attorney General's office, I propose similar amendments Nos. 37 and 121. These amendments will introduce a test as to whether the inclusion concerned unreasonably prejudices the interests of the rightsholder, which I consider a more meaningful test. I trust this will meet the Deputy's concern in this matter.
I am happy with the Minister's response. It is better than my amendment.
I move amendment No. 37:
In page 46, line 38, to delete "deliberately included" and substitute "included in a manner where the interests of the owner of the copyright are unreasonably prejudiced".
I move amendment No. 39:
In page 47, before line 1, to insert the following:
"52.–The copyright in a work is not infringed by its publication in the public interest.".
This amendment seeks to insert a new section before the part of the Bill dealing with education. The section would state: "The copyright in a work is not infringed by its publication in the public interest". The origin of this idea is a submission we heard from RTE. It is common nowadays for a particular document to leak into the public domain. Whatever else might be said about the merits of the leak, it could also be a breach of copyright. This amendment seeks to enter a public interest defence. It seems the merits of the controversy that would ensue, the type of circumstances I have postulated, will look after themselves. However, that an action for infringement of copyright might be a consideration is unreal.
There should be a public interest defence. For example, there have been a number of celebrated cases where documents came into the public domain and where it was manifestly in the public good that they did so. The common good demanded it and benefited from it. In that sense, there is a public interest defence. Will the Minister take on board that an action for infringement of copyright should not be one of the considerations for publication?
I recall our discussions on this matter on Committee Stage. I have a great deal of sympathy for Deputy Rabbitte's position. This issue is quite common, particularly in the media if quotations and various documents are leaked to them. Issues of privacy and confidentiality might be more appropriate to this area.
During Committee Stage I outlined that such an exception has not any basis in either EU or international law and that such a defence would appear to be open to serious abuse. One could have unmeritorious defendants claiming to have committed infringements in the public interest in order to frustrate or delay rights holders seeking to uphold their rights in law. Since Committee Stage I have raised the matter with the Attorney General's office which advises that copyright is a valuable form of property and the person entitled to the copyright in a work may suffer severe injustice if this right is unduly restricted. The office agrees that such an exception is open to abuse. Accordingly, while I appreciate the Deputy's concern, I cannot accept the amendment.
This is a case of trying to strike the right balance and to protect property rights. My view is supported by EU and international law and by the Attorney General's office. The position I am taking on copyright does not interfere with what is common in journalistic practices.
I do not know if a person would hide behind copyright law to prevent something from being put into the public domain in the public interest. However, I would be concerned if that happened. In other words, if copyright law was the only defence that someone could use to prevent a document or whatever from entering the public domain, that would not be right. I understand the Minister's problem. There are other issues here. I do not see where privacy or confidentiality comes into it or how this proposed amendment could possibly be abused, but there is an issue here. If somebody could hide behind copyright law as a last line of defence to prevent some document entering the public domain, that should be examined, especially if examples of that occurred in the past or are likely to occur in the future. I am not aware of any such examples but perhaps others are so aware.
The objective here is not to take away the property interest from whomsoever might have copyright. The objective is to merely ensure that the person concerned would not be open to an action for infringing copyright by virtue of publication. The history of the public service, perhaps more so on the neighbouring island than here, may not be peppered with examples but there have been some dramatic examples of documents that came into the public domain that were in the public interest. I am not sure if the Minister's position is informed by anything more than the natural caution of the bureaucracy to protect itself. In the early days the same arguments were made about the Freedom of Information Act and other matters.
I am sometimes puzzled by the weight the Minister has attached to representations made to him from, say, the national newspapers but when RTE comes to him with an argument that is researched and well based and so on, he does not seem to think that any weight attaches to it and that it is covered by privacy and confidentiality. This amendment is seeking to do no more than say there can be a public interest defence against an action for infringement of copyright. Surely public interest dimensions are foreseeable in terms of that kind of proposition. I am disappointed if the Minister will not accept this amendment.
I am in favour of as much information as possible getting into the public domain under the Freedom of Information Act, as the Deputy mentioned, and the regime that has been in place for some years. There is a provision for that greater degree of openness but I am simply making the point that the Attorney General has advised me that the copyright owner – and it is a valuable form of property – is entitled to the copyright in a work being protected and he or she may suffer severe injustice if the right is unduly restricted. That is the argument made to me by the Attorney General and I accept that advice.
If the Attorney General were on this side of the House, I am almost certain he would hold the opposite view, but c'est la vie.
I move amendment No. 42:
In page 48, to delete lines 40 to 45 and substitute the following:
"(1) Fixations of broadcasts or cable programmes or copies of such fixations may be made by or on behalf of an educational establishment for the educational purposes of that establishment without infringing the copyright in the broadcasts or cable programmes, or in any work included in the broadcasts or cable programmes.".
The major change here is that the wording is in the plural whereas in the Bill it is in the singular. It was said to us that certain people had reservations about that in that it could refer to one fixation of broadcast or cable programmes and they were anxious to put it in the plural. The Minister gave an assurance on Committee Stage that that was not necessary. He said he would check it and if he is still of the same opinion, I am happy to withdraw the amendment.
Before we move on, there is no amendment on school concerts. I have a note from Committee Stage that the Minister was planning to have a discussion with IMRO about school concerts and I wonder how he got on in those discussions. There was an incident where a school concert could not go ahead and it caused a great deal of upset. We were trying to amend that and the Minister said he would look into it. Does he have any note on that?
I have and I will refer to that when we come to deal with amendment No. 63 in the Deputy's name.
On the amendment, Deputies Stanton and Owen are right. I had it checked again and the amendment does no more than include plural references to fixations of broadcast or cable programmes. We do not need this reference because section 35 of the corresponding UK legislation uses this wording and it has been expressed in similar terms and has operated for more than a decade without difficulty.
Amendment No. 43 is in the name of the Minister. Amendments Nos. 44, 45, 46, 47 and 48 are alternatives, and amendments Nos. 1 and 2 to amendment No. 43 and amendments Nos. 49, 55 and 123 are related. We will discuss amendment No. 43, amendments Nos. 1 and 2 to amendment No. 43, amendments Nos. 44 to 49, inclusive, and amendments Nos. 55 and 123 together, by agreement.
I move amendment No. 43:
In page 49, to delete lines 34 to 38, and substitute the following:
"57.–(1) Subject to subsection (2), educational establishments and establishments to which members of the public have access shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of the work.
(2) The Minister shall prescribe the educational establishments and the establishments to which members of the public have access for the purposes of subsection (1).”.
In the interests of clarity I am taking amendment No. 43 with No. 123, and I will not accept the other amendments in this group. During Committee Stage Deputies considered that the wording of sections 57 and 222 were unclear and confusing. They also suggested amendments in this regard. Having considered this matter further, and following consultation with the office of the Parliamentary Draftsman, I propose amendments Nos. 43 and 123 which are easier to understand and which address the concerns of Deputies as outlined in their amendments Nos. 44, 46, 47, 48, 49, 55 and amendments Nos. 1 and 2 to amendment No. 43.
On amendment No. 45, I recall considerable discussion on this subject on Committee Stage. In particular, Deputies were anxious to ensure that, for example, this section would cover small specialist libraries and archives to which only limited members of the public have access. At that time I advised that the concept of an establishment to which the public has access is one which is broadly defined in law. Since then, the office of the Attorney General has confirmed to me that the section, as it is currently drafted, is open to broad interpretation and would cover situations where only a limited number of the public have access, whether just by invitation of the owner or with his or her permission. A number of examples were given on Committee Stage. That situation will be covered by this exception while libraries that are run for a commercial purpose are not. I trust that this clarifies the matter. I have endeavoured to accommodate the concerns of Deputies raised in the course of our Committee Stage discussions.
Reading what we said on Committee Stage, I am not sure the Minister has got it yet. Subsection (2) of this amendment states: "The Minister shall prescribe the educational establishments and the establishments to which members of the public have access for the purposes of subsection (1)". Are educational establishments and establishments to which members of the public have access for the purposes of subsection (1) the same, or will the Minister of State prescribe something as an educational establishment and something else as an establishment to which members of public will have access? In other words, will he prescribe schools and colleges as educational establishments and cinemas, shops, etc. as establishments to which the public will have access? This is the point about which I was confused on Committee Stage. When I asked the Minister of State if he knew the purpose of this section, he said the word "that" qualifies the word "purpose". I asked him what it refers to and whether the educational aspect of public access will be specified. I would be pleased if the Minister of State can convince me that the two types of establishments are same. Will the Minister of State prescribe establishments that are educational establishments to which the public will have access, but not prescribe establishments that are educational establishments to which the public do not have access? That is the point I want clarified.
This section will not cover cinemas. It will cover libraries and similar institutions. There will be an overlap between educational institutions. On Committee State Deputy Lenihan gave the example of a monastery in Killiney where the de Valera papers are stored. It is not open to the public except where an application is made to the monks. That would be covered by this exception.
How would that be covered by this exception?
They will be prescribed. The amendment includes a new subsection (2), which provides that the Minister shall prescribe the educational establishments and the establishments to which members of the public have access for the purposes of subsection (1). It will not cover libraries run for commercial purposes.
We are talking about educational establishments and establishments to which members of the public have access. The question arose on Committee Stage as to whether those two conditions must exist. In other words, must the establishments concerned be educational establishments and establishments to which members of the public have access? There are establishments that are not educational to which members of the public have access and educational establishments to which members of the public do not have access, such as private schools and colleges.
We are talking about the lending of copies of a work. Amendments Nos. 47 to 49, inclusive, deal with the lending of works by such establishments. Therefore, it is a two way street, so to speak.
Before the Minister of State replies, will he explain—
If the Minister of State intervenes again, it will be his third time to intervene. The Minister may intervene only twice on Report State. Do Members wish to recommit this amendment?
I believe the Minister has spoken only once.
He has spoken twice on this amendment. We can recommit the amendment to Committee Stage. Is that agreed? Agreed.
Can the Attorney General's advice, which provides for establishments to which members of the public have access, be interpreted as including an establishment to which a limited number of the public have access? For example, is the Bar Library an educational establishment?
Are they members of the public or members of an upper stratosphere?
An example of a library run for commercial purposes is a private library of a solicitors firm. That is not covered by the amendment. I spoke about libraries to which a limited number of the public would have access. They could be specialist libraries. I am sure we could all think of examples.
Is access to the Bar Library open to only a limited number of the public?
The King's Inns would be covered by the amendment. I am no so sure about the Law Library.
What about our own Library?
Access to it would be limited to Members of the Dáil and Seanad.
It is not a commercial library.
It is not.
Members of the public do not have access to it.
Confusion could arise about this aspect. I understand the intent of the section a little better now that it has been redrafted. The Minister of State is saying he will get a list of places that are educational establishments. That is straightforward because one assumes people have access to such establishments. He will also have to get another list of establishments to which members of the public have access for the purposes of education or obtaining information. What about establishments to which members of the public have access through a library or educational establishment? The Minister of State referred to a library in a solicitors firm. I understand that members of the public, through other libraries, have access to such libraries. If a member of the public requires a copy of the fourth volume of the road traffic Acts published in, say, 1986 and a public library contacts a library in a solicitors firm for that volume and it is made available to the public library, that constitutes public access. A member of the public may not be able to walk into the library of a solicitors firm and request a particular book, but he or she may get access to such a book in another way. There is an arrangement for the informal lending of expensive and rare books among academics. Has the Minister of State given consideration to the meaning of public access in terms of the lending of books? Public access is not confined to access in terms of members of the public going to a library and requesting a book.
This amendment refers to section 39. Section 39(1) states "References in this Part to the making available to the public of a work shall be construed as including all or any of the following.". Section 39(1)(g) states “lending copies of the work without the payment of remuneration to the owner of the copyright in the work,”. Is the Minister saying certain establishments do not have to pay remuneration to the owner of the copyright in the work, provided that such establishments are educational and members of the public have access to them? What is the position regarding establishments that do not fit that category, which I presume would include the Oireachtas Library?
Educational establishments or establishments that are prescribed will not have to pay such a remuneration.
With regard to establishments to which only some members of the public have access, the Deputies have raised important matters regarding the regulations that will be implemented. I mentioned the example of private libraries in solicitors firms which are run for commercial purposes. The Oireachtas Library is for Members of the Dáil and Seanad and is limited. What we are looking at here is a place to which a limited public would have access. It will vary from case to case. I ask for trust in the Minister of the day to take account of that aspect. I am not sure about the Law Library but the King's Inns would have access to a limited public, barristers and students.
That is obviously an educational establishment.
I ask Deputies to accept that the Minister of the day will introduce regulations on a case by case basis and will try to ensure he gets them right. We have endeavoured to respond to the debate on Committee Stage and to clarify the position. I appreciate issues have been raised that need to be addressed at the regulation stage.
Will every educational establishment to which members of the public have access have to be specified by the Minister under this section? In other words will the Minister produce a list including all these establishments? Deputy Rabbitte and I asked earlier if both conditions have to be met, that is, that they have to be educational establishments and establishments to which members of the public have access?
All this would be subject to our discussions with the Attorney General's office and obtaining legal advice. I presume there could be classes of libraries as in universities included in the list. If each individual library was to be specified the list would be lengthy and exhaustive. There may be a question of dividing classes of libraries.
Does Deputy Rabbitte wish to move his amendment to the amendment?
On reflection, subsection (2) of the Minister's amendment is probably a better construction than mine. What is the answer to Deputy Stanton's question? I ask for the dropping of establishments to which members of the public have access and to replace it simply with other prescribed establishments. Subsection (2) provides that the Minister shall prescribe the educational establishments and the establishments to which members of the public have access for the purposes of subsection (1). Is that a separate issue or is it connected to the educational establishments?
It is still unclear.
I am informed that the wording is in line with the EU directive on lending and rental. Clearly we would have consulted with the Attorney General's office and used language compatible with the EU directive.
The librarians who made representations to the Minister and his Department are not concerned to include commercial libraries. That is not their objective. Other than that they want to see relatively free movement which we shall come to later in terms of inter-library borrowing, lending and such matters. So far as this amendment is concerned, is the Minister saying, having regard to the fact that commercial libraries are ruled out and nobody is objecting, that what he is likely to prescribe will meet more or less the requirements of the librarians'ad hoc group?
The answer to Deputy Rabbitte's question is "yes".
Does Deputy Rabbitte wish to move his amendment?
I move amendment No. 49:
In page 49, between lines 38 and 39, to insert the following:
"(2) The librarian or archivist or the library or archive prescribed by the Minister for the purpose of lending shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of that work. A librarian, archivist, person or establishment shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of a copy of that work to a library or archive prescribed by the Minister for the purpose of receiving such loans.”.
Where the word "archivist" was omitted from an earlier version of the Bill I hope it will be proofed to ensure that wherever librarian is referred to it will include "or archivist".
That is being done in amendment No. 50.
That is fine.
We cannot have a discussion on the amendment because it was already grouped with amendment No. 43.
I move amendment No. 50:
In page 50, line 50, after "librarian" to insert "or archivist".
This is the issue to which Deputy Owen has referred. It is a technical amendment to ensure consistency.
There are probably other parts of the legislation where the word "archivist" may have been omitted. I want to ensure that other sections with similar provisions have the amendment inserted. I take it the correct version of librarian and archivist will occur wherever it is needed.
We shall endeavour to make this correction throughout the Bill where necessary.
I move amendment No. 51:
In page 51, between lines 21 and 22 to insert the following:
"(3) A prescribed library or archive shall not make available a photocopying machine or other facility for enabling works to be copied by members of the public, unless–
(a) such library or archive shall hold a current licence from a licensing body authorising such copying, or
(b) there is no such licence available.".
The matter of this amendment arose on Committee Stage. It has to do with the concern to control in some way photocopying or other facilities that enable works to be copied by members of the public. There are controls in universities and they try to ensure there is no abuse. These photocopying machines should not be made available unless a licence from a licensing body authorising such copying is held or there is no such licence available. This is a concern of copyright holders. Universities also have a concern about it and would wish it to be tightened up. Perhaps it is tightened up elsewhere and, if so, will the Minister let us know?
We have considered this amendment since Committee Stage. We remain of the view that this would impose a very precise restriction on the operation of libraries and archives which they might find onerous to comply with in practice. For that reason I ask the Deputy to withdraw the amendment. So far as they are concerned we do not want to provide too many restrictions.
Will the Minister comment on whether there is a need for more control with regard to photocopying in libraries where machines are made available to members of the public, students etc?
Section 62 deals with the control side of this debate.
I move amendment No. 52:
In page 51, line 23, to delete "three" and substitute "3".
Amendment No. 126 is cognate to amendment No. 54. Amendments Nos. 54 and 126 may be discussed together. Is that agreed? Agreed.
I move amendment No. 54:
In page 52, between lines 15 and 16, to insert the following:
"65.–(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make a copy of a work in the permanent collection of the library or archive–
(a) for the purposes of obtaining insurance cover for the works concerned;
(b) for purposes of security;
(c) for the purposes of compiling or preparing a catalogue;
(d) for exhibition in the library or archive; or
(e) for the purposes of informing the public of an exhibition,
without infringing any copyright in the work, in any illustrations accompanying the work, or in the typographical arrangement.
(2) This section shall apply to copying conducted for the curatorial purposes specified in subsection (1), and to an extent reasonably justified by the non-commercial purpose to be achieved.”.
Deputies will recall that on Committee Stage, Government amendments extending definitions of archive and archivist to cover museums and their curators were accepted. These consequential amendments, which were requested by the Minister for Arts, Heritage, Gaeltacht and the Islands, are designed to ensure that the specified types of in-house curatorial copying which are conducted by museum curators do not infringe the copyright or performer's rights.
I move amendment No. 55:
In page 52, between lines 38 and 39, to insert the following:
"67.–The librarian or archivist of a library or archive prescribed by the Minister for the purpose of lending shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of that work. A librarian, archivist, person or establishment shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of a copy of that work to a library or archive prescribed by the Minister for the purpose of receiving such loans.”.
I did not realise this amendment was discussed with amendment No. 43 although I did advert to the issue involved, that is, interlibrary lending and borrowing. I urge the Minister to accept the amendment.
I second the amendment.
This amendment was discussed with amendment No. 43.
I did not realise the amendment was included in that group of amendments. I adverted to it in passing but it is the substantive amendment of the group. The outstanding remaining grievance that librarians and archivists have with the Bill is that the Minister is imposing a restriction on interlibrary borrowing, which is crucial to the functioning of the library system. Librarians believe the Bill will constrain their ability to carry out normal business among themselves. Frequently when Members go to the Oireachtas Library, the staff have to go to a library outside to get the particular book or report we are seeking.
I do not know why the Minister wishes to take a stand against this. Whose rights are being damaged as a result of section 39(1)(g) not applying to this limited area of interlibrary borrowing? I cannot see an issue of property rights of any significance involved. There is an issue of the public good. People who use libraries are entitled to get information. This practice is a convention in the library system. The Minister will have received a submission from the ad hoc librarians group which makes a great deal of sense. The librarians have no vested interest or axe to grind. They are merely trying to retain the freedom to conduct their business as they always have without leaving themselves open to allegations of infringing copyright legislation.
We discussed this matter on Committee Stage. It is one of the few matters that still worry archivists and librarians. If this amendment is accepted, they say it will remedy a deficiency in Part II of the Bill at section 57. The deficiency arises from the fact that in the case of lending, the exemption does not cover borrowing and in all such exemptions for educational establishments there is currently no power conferred on the Minister to prescribe other categories of libraries apart from the establishments open to the public.
This is the point I made earlier. Lending takes place from libraries which are not open to the public but from which other libraries and archivists borrow. Private libraries are an example. People might have inherited fine private libraries which would not be open to the public but whose books can be borrowed for study or other such reasons. The Minister has not dealt with this deficiency.
In light of the arguments made by Deputies Rabbitte and Owen I accept the amendment.
That means the Minister is accepting amendment No. 49 as well, which is the same as amendment No. 67. If the Minister is willing to accept this amendment, he should also accept amendments Nos. 49 and 67.
The Bill would have to be recommitted in respect of amendment No. 49.
I do not mind if the Minister accepts amendment No. 55 as long as the principle is accepted. There is no need to recommit.
We will not argue about it. We will accept amendment No. 55.
I move amendment No. 56:
In page 52, line 40, to delete "or 66, was” and substitute “or 66 but is”.
This is a technical amendment.
I move amendment No. 57:
In page 54, to delete lines 31 to 36.
The Minister and I might be at cross purposes on this matter. There could still be a situation where a document in the circumstances envisaged by subsection (2) may not be appended to a report. Take, for example, a Committee of Public Accounts report. If the work was previously and lawfully made available to the public, it could not be published as an appendix to a Government report or a parliamentary committee report. That is my interpretation of the provision.
There might be confusion about the purpose of section 72(2). This is designed to prevent the necessary exception in favour of certain communications by the Government or the Houses of the Oireachtas from being abused, in particular by reprinting under their imprint works which have already been published or made available through the normal, usually commercial, channels.
That might appear unrealistic but I am advised that discussions on this matter have taken place in the context of the negotiations on the EU directive on copyright in the information society which suggests that the enactment of a provision along the lines of section 72(2) is necessary if the section 72 exception as a whole is to be regarded as compliant with EU and international copyright law. I hope Deputy Rabbitte will agree not to press the amendment.
The international legal position is a powerful argument. However, take the example of the DIRT report and a document which is lawfully available to the public in the manner prescribed here. Could that be published as part of the report? Section 72(2) provides that the Government or either or both Houses of the Oireachtas shall not make available to the public copies of a work referred to in subsection (1) or cause the work to be copied or made available under this section where the work has previously been lawfully made available to the public otherwise than under this section.
There are any number of circumstances where the work could have been previously lawfully made available to the public and a parliamentary committee might wish to publish its report with that work appended to it by way of explanation. I am trying to establish whether section 72(2) permits that. Does it constrain the Houses of the Oireachtas, either House of the Oireachtas, a parliamentary committee or the Government from engaging in what might be considered conventional practice up to now?
This would relate to a book, for example, or a document published outside which would be given to the committee. This is effectively trying to give some degree of protection to that author in the context of the use of the material. This would not affect the DIRT report. I referred to work made available through the normal commercial channels. A better example from the point of view of my argument would be that the committee in question would not reproduce the book without the permission of the owner. That is the angle I am pursuing. I am trying to give some degree of protection to the individual from outside to protect that property right. This may not happen in many cases but the issue has been raised at EU level and I believe it should be included here. However, I do not want to introduce legislation which would restrict the concerns of the Deputy and the types of publications to which he referred. The report of a committee will not be restricted. There is just the element of someone from outside producing a book, for example, which is commercially available. I am concerned about that possible use of an individual's work and I feel it is necessary in the context of EU discussions to deal with that issue from the rightsholder's point of view.
The Minister's assurances are on the record. In conclusion, I will give a hard example. The Minister of State instanced the case of a book or article. In his closing submission to the DIRT hearing, the former Attorney General, Dermot Gleeson, on behalf of Allied Irish Banks, adverted to a number of authorities the members of the sub-committee ought to read. Let us say a particular article was an authority on some aspect of the law with which he was concerned on behalf of his client. May the committee append that or part of that to the report by way of illustration of a particular point or whatever?
I am advised that situation is covered in section 72(1). I presume the author would have anticipated that situation arising. I accept the validity of the Deputy's case. The case I am making is based on possibly unrealistic situations. Many aspects of the legislation stem from international obligations and experiences elsewhere. The situation the Deputy presented would be dealt with and covered in section 72(1) where the author would have anticipated such a situation arising.
I move amendment No. 57a:
In page 54, line 44, to delete "or".
Amendments Nos. 58 and 59 are related and will be discussed together.
I move amendment No. 58:
In page 59, line 31, after "fixation" to insert "which may be exploited for commercial purposes".
This issue was discussed on Committee Stage when the Minister stated that commercial and non-commercial purposes are included. If he gives that assurance I will withdraw the amendments. The amendments were tabled to ensure that programme makers would not be infringing copyright if the reading or recitation of poems or literary or dramatic works were part of a programme that was used for commercial purposes. The Minister gave an assurance that that was the case. He will allay the fears of these people if he gives that assurance again.
I give an assurance that this section deals with commercial and non-commercial aspects.
I move amendment No. 60:
In page 59, between lines 44 and 45, to insert the following:
"(2) This section does not apply if or to the extent that there is a licensing scheme in force providing for the granting of licences to authorise such copying.".
A number of issues arise here. Section 88 reads, "Where an article or a scientific or technical subject is lawfully made available to the public .. it is not an infringement of the copyright in the abstract or in the article to copy the abstract or to make available to the public copies of the abstract .". The fear is that very often abstracts contain the main salient points in the actual publication. One can make use of and obtain the information just by having the abstract. There is a fear that abstracts may be reduced in size as a result of this. There is also a fear that people's work may be exploited as a result of this section if abstracts are copied without permission being required. The amendment seeks that this section does not apply if or to the extent that there is a licensing scheme in force providing for the granting of licences to authorise such copying. That will tighten up the section. I know the Minister had reservations about this issue and I would like to hear what he has to say.
It is amazing how we are moving from the interests of users to copyright holders. Perhaps this reflects the fact that this is balanced legislation. This amendment would restrict the ability of the publishing and scientific communities to disseminate copies of abstracts of scientific and technical works where licensing schemes aimed at controlling such copying existed. Copying of this nature may be particularly advantageous not only to the scientific community but also to publishers of scholarly works in drawing the attention of scholars to the published work of their peers. I would not favour the adoption of this amendment at this time since it would be inconsistent with the particular balance which I wish to strike between the rights, in particular, of users of such material and its publishers in the Bill. Deputies will appreciate that it is implicit in my comments both on Committee Stage debate and in the debate on the Bill in the Seanad that I regard the role of scientific and technical copying as highly sensitive. In consequence, I will be keeping this balance under active review and will not hesitate to propose legislation to adjust it should this prove necessary. For this reason, I ask the Deputy not to press the amendment and I will keep the matter under review.
I move amendment No. 61:
In page 60, between lines 22 and 23, to insert the following:
90.–(1) In this section–
‘artist' means the author of an original work of art;
‘artist's resale right' means the right of the artist granted in this section;
‘artist's resale royalty' means the percentage of the proceeds of the sale of the work to which the artist is entitled under this section;
‘original works of art' means works of graphic or plastic art, including pictures, paintings, collages, drawings, engravings, prints, etchings, lithographs, sculptures, tapestries, ceramics, glassware and photographs, and copies of works of art which have been made in limited numbers by or with the authority of the artist, and ‘original work of art' shall be construed accordingly;
‘registered licensing body' means a collecting society representing artists which is registered under the provisions of Part III, Chapter 8 of this Act;
‘sale price' means the price at which the original work of art is sold, exclusive of all taxes and seller's commission;
‘the intermediary' means the agent or agency acting as intermediary between the purchaser and the seller, such as organisers of public sales and auctions, art galleries and in general, any dealers in works of art;
‘the seller' means the person or persons entitled to receive the sale price of an original work of art.
(2) The author of an original work of art shall, subject to the provisions of this section, have the right to receive a percentage of the proceeds of all sales of the work subsequent to the first sale or transfer of ownership thereof.
(3) The artist's resale right shall be inalienable and incapable of waiver.
(4) The artist's resale right shall apply to all acts of resale of original works of art involving sellers, buyers or intermediary art market professionals, such as salerooms, art galleries, and in general, any dealers in works of art, which take place from the date or enactment of this legislation.
(5)(a) The artist's resale royalty shall be payable by the seller within three months of the date of sale of the original work of art.
(b) The levying and payment of the royalty to a party specified in subsection (9) shall be the responsibility of the person who engages in the sale of, or who serves as the intermediary for, original works of art.
(6) (a) The amount of the artist's resale royalty shall be determined, from time to time, by the Minister.
(b) No artist's resale royalty shall be payable in respect of a sale where the seller shall prove that the resale price of the work does not exceed the purchase price paid by the seller.
(c) No artist's resale right shall apply to the particular situation of art galleries which acquire works directly from the artist, providing the resale takes place within three years of the acquisition.
(7) The artist's resale right shall endure for the same period as the copyright term.
(8) The artist's resale royalty shall be payable to the artist, and after his or her death to any of the following parties: the artist's personal representative; the beneficiary of the artist's resale royalty under the will of the artist, it having been admitted to probate; the heir at law of the artist in the event that the artist died intestate and no grant of administration to her or his estate has been extracted.
(9) It shall be a sufficient discharge of the seller's obligation to pay the artist's resale royalty if the seller or the intermediary shall pay the same to a registered licensing body or to an agent appointed to act on behalf of any parties specified in subsection (8) hereof.
(10) In the event that the person entitled to receive an artist's resale royalty cannot after reasonable enquiry be ascertained or identified by the seller of an original work of art, and there is in existence no registered collecting body, then the amount of the royalty shall be held in trust by the seller for the person entitled to receive it for a period of three years from the date of sale, and thereafter the obligation to pay the artist's resale royalty shall be at an end.
(11) (a) The seller of an original work of art shall be obliged, upon receipt of a request in that behalf, to furnish to any of the parties specified in subsection (8) or (9) hereof, details of the sale price of such original works of art and the date of sale of same.
(b) An agent or representative of sellers of original works of art and an organiser of a sale of original works of art shall be obliged, upon receipt of a request in that behalf, to furnish to any of the parties specified in subsections (8) and (9) hereof, details of the sale price and date of sale of all sales of original works of art conducted the preceding year in which the party requesting the information has an interest. In the event the artist's resale royalty has not been paid within the period specified in subsection (5), the agent shall be also obliged to provide the name and address of the seller on receipt of a request for such information.”.
This is an important amendment. Since and during Committee Stage, there have been major moves in Europe in this area. At the moment if an artist produces work which is a once-off painting, sculpture or whatever and that work is sold on for, say, £100, if five, ten or 20 years later that work increases in value and is resold for £1,000 or £10,000, the original artist gets no recognition for the work in this jurisdiction. In other jurisdictions artists have a legal right to receive a percentage of the resale value. This is included in copyright law.
When the artist dies, his or her work often increases in value because no more can be produced. The artist's heirs, however, get nothing from this increase in value. We have done much for artists in this State but if the Minister accepted this amendment it would be a sign that we support them in their work. The Artists Association of Ireland is anxious for moves to be made to recognise this right in Ireland.
The last time the Minister discussed droit de suite he refused to introduce it to the Bill. Major interests in Britain were anxious to stay out of any agreement but the British Government has since moved and reached agreement with Europe. We must show artists that we want to help them and their heirs. I know artists who live from hand to mouth. This would be of practical help to them – in the event of their work increasing in value, they would get a percentage of the resale value.
This is not a modern concept and I do not understand why the Minister has set his face against including this in the legislation. On 16 February there was an article in a British newspaper by Neil Buckley in Brussels which stated that Britain was to agree a deal on resale rights for artists. The British Government has pulled back from its opposition to droit de suite being included in the next EU directive. My argument on Committee Stage is even more relevant now. Why can the Minister not put this element into the legislation with the proviso that the timing will be determined by a Minister? Within a year of the enactment of the legislation, an EU directive will cover droit de suite.
The first recorded case of copyright infringement relates to the visual arts in sixth century Donegal. St. Finnian accused St. Colmcille of copying the illuminated text from the Book of Durrow without his position. High King Diarmuid studied the case and decreed, "To every cow its calf and to every book its copy."
The Deputy should not mention people who are outside the House and not in a position to defend themselves.
I do not mean to malign St. Colmcille. Diarmuid's judgment led to a huge battle in which thousands died, and Colmcille was banished and exiled to Iona, with many years passing before he returned to Ireland. That was copyright in the sixth century. Can the Minister imagine the battles in the 21st century when the artists' association realises that he has refused to do what High King Diarmuid did in the sixth century – to recognise the artist's right to droit de suite?
Many artists are not that famous when they first sell their work. Suddenly they become popular and everyone wants to buy their work. Something sold for £1,000 is being sold for £250,000 within a short space of time. The artist is left in his garret unable to replace his brushes because someone else has walked off with £249,000 profit on his artistic endeavour. The Minister understands this – he is a musician. If other creators are benefiting from copyright and getting some recompense for the endeavour they put into their work, it is incredible that visual artists are not.
Now that the British have decided to accept droit de suite, we should set an example. The Minister should put it into this Bill. He may not be there in a year to insert it once the directive comes into force. Deputy Stanton, Deputy Rabbitte or I will be in his job in a matter of months and we will receive credit from artists for the rest of our lives for introducing droit de suite into the copyright legislation.
The Minister should have the courage of his convictions and accept the amendment.
I favour droit de suite and I want to see this legislation coming into being. On taking up my position, however, I saw both sides of the argument. The last Government had concerns about the introduction of droit de suite and the arguments were well balanced. I said on Committee Stage that it is unrealistic for us to introduce it in the context of this comprehensive Bill.
An Irish droit de suite is on the way on foot of the EU directive which recently received a common position at the Internal Market Council. I was glad to be there to support that. The text of the directive will be subject to a Second Reading in the European Parliament and, doubtless, members of Fine Gael will be involved in that. The final text may not be known to member states for some time to come and that is another reason to refrain from introducing a droit de suite into this Bill. It would be more opportune to wait for the finalisation of the terms of this directive so a settled scheme of artists' resale rights can be introduced.
I noted the points raised on Committee Stage and I will contact the Minister for Arts, Heritage, Gaeltacht and the Islands to discuss the establishment of an interdepartmental working group to examine droit de suite in a manner consistent with the terms of the directive, once they become clear.
The examination will have to give full weight to the views of all relevant interests, including those of the professional art trade, the economic health of which is of great benefit to artists. Any consequent action will be based on clear Government decisions following the conclusion of this process.
I thank the Deputies for tabling this detailed amendment. I also thank Deputy Owen for the history lesson about High King Diarmuid and I will respond to her concerns on this matter in due course. The next step in the process will involve my working closely with the Minister for Arts, Heritage, Gaeltacht and the Islands. Following that, I will communicate with the Deputies in respect of this matter at the earliest opportunity. I acknowledge the work the Deputies have done in drafting this amendment but my position has not changed since Committee Stage. However, I have made it clear that I favour the introduction of an Irish droit de suite.
I welcome the Minister of State's indication that he has changed his position, that he favours the introduction of droit de suite and that he is in the process of initiating the drafting of legislation in this regard. I hope that legislation will appear, provided it is still in office, on the Government's legislative programme in the autumn. I will not revisit the arguments in respect of this matter because the Minister of State is already familiar with them. I congratulate him on making this major concession.
I thank the Minister of State for adopting a more positive attitude to the concept of droit de suite. Europe has moved on in this area and Ireland has lagged behind. When Tony Blair came to Ireland he stated that the British would assist us in respect of grants for farmers provided we reciprocated in respect of the droit de suite issue. A total of 50 countries worldwide, 11 of them in the EU, have introduced droit de suite legislation. I thank the Minister of State for conceding the point but I intend to press the amendment.
Amendment No. 62 is in the name of the Minister of State. Amendment No. 128 is cognate and the two may be taken together by agreement. Is that agreed? Agreed.
I move amendment No. 62:
In page 61, line 21, to delete "discrete" and substitute "special".
On Committee Stage Deputies raised concerns about the use of the word "discrete" in these sections. Having considered the matter further, I have decided to return to the wording used in the Copyright Act, 1963, which, to my knowledge, did not cause any difficulties in this regard. Therefore, I propose the use of the term "special" instead of the word "discrete".
We dealt with this matter earlier in a different context. I reiterate my plea to the Minister of State to indicate the difference between the terms "special" and "discrete".
Is the Deputy in a position to suggest a better alternative?
No, but it is the Minister of State who is proposing to substitute the word "special" for the word "discrete". On Committee Stage we made an attempt to arrive at a definition of discrete. It is a word which conjures all sorts of images in terms of one being in a grubby hotel late at night and being told that if you pay a discreet charge one might gain access to a particular form of entertainment.
The word "discreet" used by Deputy Rabbitte in his example is different from that used in the section.
The Minister of State's amendment, which has given rise to great interest in the Members' bar, proposes the substitution of the term "special" for the word "discrete". I want to be able to give guidance to people who instead of paying a discrete charge will be obliged to pay a special charge. I am interested in hearing the Minister of State's views on this matter.
I went to the trouble of consulting the dictionary because I did not know the difference between the words "discrete" and "special". The word "discrete" used in the section is different from the word "discreet" to which Deputy Rabbitte referred. The "discreet charge" to which he referred involves slipping a few pounds to someone in order to gain entry to a place. Such charges were levied on those who wanted to gain entry to a speakeasy in the past.
According to the dictionary, the word "discrete", as used in section 94(2), means "separate and distinct". However, the amendment proposes that this be replaced with the word "special", which means "distinguished from others of its kind". Therefore, section 94(2) will now read "where there is a charge distinguished from others of its kind". Does this mean that an hotelier, for example, could be informed that he or she must pay copyright fees in respect of music being played on their premises if a "special charge dis tinguished from others of its kind" is being levied on people listening to that music?
Has the Minister of State received legal advice in respect of this matter? Given that the word "discrete" is defined in the Collins' Pocket English Dictionary – Colour Edition, as meaning “special and distinct”, it appears it would be better to use it in the section than the word “special”.
I have no difficulty with the word "discrete".
The Acting Chairman might be able to assist us in terms of providing advice on the legal position but I understand he cannot involve himself in the debate. However, the word "discrete" seems to be the best option.
In introducing this amendment I was trying to allay Members' concerns about the use of the word "discrete". I do not recall in detail the Committee Stage debate on this matter but concerns were expressed about the possible connotations which might attach to the word "discrete". Deputy Owen has now provided us with a definition of discrete as meaning "separate and distinct". The section involves putting in place an additional charge over and above the normal charge and I have no difficulty if Members want to reach a collective agreement in terms of retaining the word "discrete".
Would it not be possible to use the phrase "separate and distinct"?
We are on Report Stage and no amendment has been tabled to that effect. Therefore, we are faced with a choice between using either discrete or special. If Members want to leave the word "discrete" in place, I will withdraw the amendment.
I move amendment No. 63:
In page 61, line 31, to delete "or are otherwise" and substitute "and are solely".
Concerns were expressed to us about the use of the term "or are otherwise" because people believed it was too vague. It was suggested that the section should read "and are solely concerned with the advancement of religion, education or social welfare". Clubs, societies and other organisations are granted exemptions provided they are concerned with the advancement of religion, education or social welfare. In my opinion the term "or are otherwise" is not specific enough and replacing it with the phrase "and are solely" means that clubs, societies and other organisations to which the section refers must be concerned with the advancement of religion, education or social welfare. Will the Minister of State indicate his views on this matter?
This amendment follows on our Committee Stage discussions. My position on the amendment is that it would impose an exclusive requirement that beneficiaries under the clubs and societies exception be conducted solely for the advancement of religion, education or social welfare, in addition to being charitable in their main objectives. In view of the complex legal meaning attaching to the concept of what is charitable, such a change would make this exception too complex and inflexible to work. The somewhat more flexible formulation incorporated in the present text is preferable and should be retained. Accordingly, I would prefer not to accept this amendment.
I hope not to have to commence this section at all if I receive sufficient undertakings from PPI Limited, which represents sound recordings proprietors, that it will refrain from pursuing royalty payments from genuine non-commercial clubs and societies which are the intended beneficiaries of this exception. My Department is in correspondence with PPI and IMRO in regard to the playing of music at genuine non-commercial school concerts and similar school events. While the pressure of work on this Bill has not permitted my Department to finalise this correspondence, the present indications are that both organisations are strongly sympathetic to my objective of lifting the burden of paying royalties from the playing of music and sound recordings in genuine non-commercial cases by an informal route. That was the committee's wish and I am confident of a positive outcome to the correspondence with both collecting societies in the near future. I hope our objectives on this important issue can be realised.
There is a concern that some clubs and societies might exploit this exception. I am aware that the phrase "and is not established or conducted for profit" is included in the text. Some societies run events to raise money and make profits which are used to provide changing room facilities for young people, club houses etc. but such profits could also be used to build an establishment which could become a full-time bar which could take business away from an adjacent bar which pays rates and copyright fees.
I urge the Minister to proceed cautiously here. I do not want clubs and societies to be exploited in any way by the PPIs of this world but, equally, I do not want people who are entitled to copyright payments, such as poor artists, to be denied copyright payments by clubs which could exploit this exception.
I stated my preference not to commence this section and that would allow PPI to pursue people who might abuse the exception. I am satisfied at this stage that the approach agreed on Committee Stage is the best one. I am also satisfied that genuine people who carry out activities for charitable purposes will be allowed to continue that practice. The formula I advocated is the correct approach.
To benefit from this exception, a club, society or organisation can be either charitable or religious. It can be one or the other. If someone were to establish the "Tom Kitt Church of Copyright" to spread the religion of copyright across the world, he or she could argue that the church was set up for religious purposes and that people should pay money to join it. Does the use of the word "or" mean that an organisation can be either charitable or religious? Some cults exist which are not very charitable and they are specifically set up to cater for the financial interests of the cult leader.
We had an arrangement like that in this country not too long ago.
Problems could arise in regard to the use of the word "or".
I move amendment No. 64:
In page 62, lines 1 and 2, to delete "by means of his or her own facilities".
This amendment relates to small radio and television stations which do not have their own facilities to make or broadcast cable programmes. If this section remains in its current form, such stations will be at a major disadvantage.
Deputies Owen and Stanton proposed this amendment on Committee Stage because of their concern that the current wording of the section restricts the benefit of the copying exception to broadcasters who copy using their own facilities and, as such, excludes broadcasters such as TG4 which contract out such work. The Deputies also pointed out that the equivalent provision in the UK, section 86 of the Copyright, Designs and Patents Act, 1988, provides that broadcasters can copy or authorise copying for the purpose of their broadcasts but does not state that the broadcasting organisation must use its own facilities.
I share the concerns raised by the Deputies but, having raised the matter with the Attorney General, I have been advised that this amendment would go further than what is permitted by EU international law, namely, the Rome Convention, or the EU Directive on rental and lending and should, therefore, be opposed. I cannot accept the amendment.
We do not want to contravene EU law. The Minister's hands are tied in spite of the fact that he agrees with the thrust of the amendment.
Amendments Nos. 65, 67, 129 and 130 form a composite proposal and amendments Nos. 66 and 68 form an alternative composite proposal. Amendments Nos. 65, 66, 67, 68, 129 and 130 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 65:
In page 62, line 7, to delete "6" and substitute "3".
On Committee Stage, Deputies Owen and Stanton suggested an amendment to the effect that any copies made by broadcasting organisations or cable programme service providers, by means of their own facilities and for the purposes of their own broadcasts or cable programmes, should be destroyed within 28 days of first being used for broadcasting or being included in a cable programme service rather than the six months provided for in the Bill. I am aware this is the practice in some European countries and in the UK. However, a similar provision already exists in section 12(7) and (8) of the Copyright Act, 1963, although that Act referred only to RTE and its broadcasts. A time limit of six months was provided for in the 1963 Act.
Having considered this matter further and while appreciating the rights of rightsholders, I am of the opinion that the reduction of the time limit to 28 days would result in a radical undermining of this exception which is currently enjoyed by broadcasting organisations. However, in a spirit of compromise, I am proposing a time limit of three months in an effort to bridge the gap.
I thank the Minister for his attentiveness on Committee Stage. The retention period of 28 days is common practice in most European countries. I thought the Minister could have reduced the six months to 28 days. There is a fear that material which has been hanging around for six months could fall into the wrong hands or be used in an inappropriate way.
A large conglomerate will also have more room to store a large number of tapes.
I had hoped the Minister of State would come closer to the 28 days but I accept his amendment.
I move amendment No. 67:
In page 62, line 13, to delete "6" and substitute "3".
Amendments Nos. 69, 115 and 116 are cognate and amendment No. 70 is related. Amendments Nos. 69, 70, 115 and 116 may be discussed together.
I move amendment No. 69:
In page 62, line 24, to delete "and" and substitute "or".
This may appear to be no more than a drafting amendment but it would change the meaning of the section which deals with video recording of television programmes. It tells much about the thrust of the Bill and the stage we have come to, that one now needs permission to push the button on one's own video recorder or the modern day version of the glimmer man will come to see if one has paid copyright.
The Bill allows for private use of video recording.
Only a very limited use is allowed. If the Minister is serious in making that intervention he should change the wording of the section from "private and domestic use" to "private or domestic use". The imposition of the requirement that recordings be for private and domestic use is an entirely unnecessary constraint. I may want a recording of a programme for my private viewing but it may not be possible to meet the second part of the requirement and vice versa. Compliance with this sort of prescriptive detail before one can record a programme for one's private use is an unreasonable intrusion into the way we live now. If one cannot see one of the matches in the European football contest, one must now be careful in what circumstances one causes it to be recorded and subsequently viewed.
The Bill places a heavy emphasis on the rights of owners of copyright. My amendment seeks a modest concession to the societal consequences of what we are doing. Whatever advice the Minister is being given, I ask him to accept this amendment.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I support Deputy Rabbitte's amendment. How can this section be policed? It will be of interest to Members whose children can tape anything they wish at the touch of a button. When this Bill becomes law, if their children make, for private but not domestic use, a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place they will break to the law.
It conjures up the vision of a great many 12 and 13 year olds who are fixating "The Simpsons", one of my favourite programmes, on their videos but who perhaps are doing so for domestic use but not for private use. They might be doing it so that they can show it to their friends. Is that still a domestic use or once the friends come and watch it, does it cease to be a private use?
That is the difficulty with the term "and" in this section. It has to be "or", otherwise one will have the nonsense, perhaps, of that van going around with the detector swinging around on its roof, identifying where the televisions are, then trying to find some way of identifying where the videos are, pouncing on a house and grabbing a load of videos. There will be many houses where they will find those videos, all of them decent with nothing naughty I hope, but they will pounce on them and then they will find they have been used for reasons other than domestic and private together. It is a very small word to change, although a little word can mean a great deal.
Deputy Rabbitte's second amendment concerns doing this solely for the purpose of enabling it to be viewed or listened to at another time or place. Again, how does one police that? That is ad infinitum, one could keep it then forever. I do not think there is any time constraint on it. It strikes me that this is a real intrusion into people's homes and it is not policeable. We have heard the Minister for Enterprise, Trade and Employment saying she will take eight or nine gardaí and set them up in the company law enforcement agency. We have not been able to convince her to get the Garda Commissioner to assign a number of gardaí to help with the Competition Authority where they really are needed. We would have to ask the Garda Commissioner to have some video policing gardaí. I can envisage them now with their visors and their special uniforms as they come roaring around the housing estates of Dublin and elsewhere, looking for timeshifters who have been taping videos, perhaps solely for private use or solely for domestic use but not for private and domestic. I ask the Minister of State to take a risk and go for this amendment.
The Minister of State should take a risk.
The Deputy will concede that I have accepted some of the amendments today and on Committee Stage. I assure the House and the public at large that there is no problem with people recording their favourite programme or whatever, the obvious example being "Coronation Street", and viewing it at another time, in other words practising time-fixing. That is what we are trying to achieve. On the use of the term "private and domestic", it is common copyright terminology to describe private personal copying. Having listened to the Deputies today and to the Committee, I would like to try to obtain a better definition but when one introduces the term "or", one is making, as the Deputy said herself, quite a sizeable change and then that allows effectively for private copying.
The problem there from the rights owner's point of view is that one is then entering a new area. For example, at the other extreme of the argument where an individual would record a particular programme – let us get away from the term "fixation" and use up to date language – and then go on a lecture tour or address seminars using that programme—
That would not be private use.
—that person should be paying royalties to the rights owners because he is using it for commercial use. If Deputy Nora Owen produced a documentary or gave a lecture which was on television in relation to copyright law, for example and someone else used that material, it would be wrong. I would be glad to accept this amendment but my problem in doing so is that effectively it could allow for that situation because it would involve a person recording something privately but who could use it for commercial benefit. Therein lies the difficulty.
I accept that there may be better language available. I give the Deputy one commitment. I know there will be an amendment to this Bill and it might take some time but I or whichever Minister is in this Department at that time will ask the officials to examine it during that period. We have consulted with the Attorney General on the terminology that Deputy Rabbitte suggests. Using the term "or" would give too much latitude to this section.
We want to try to allow for the person to personally copy something for private use. The term "private and domestic use" is used in copyright law. Deputy Rabbitte referred to a nursing home situation or a private hospital. All of those situations are covered by this legislation. There is no question of creating any police force for this purpose because we do not deal with legislation in this way. We deal with it from the other end and I mentioned the example of a person privately recording something and using it commercially. As the Deputies know, the legislation is geared towards that person paying royalties to the rights owners. That is the way in which this law is placed. We are not interested in knocking on the doors of people's homes as they press the video button. It is ludicrous to suggest that.
The problem here is the term "and domestic" and again using Deputy Owen's dictionary, domestic means "of the home or family". The Minister is saying that this is restricting the making of fixations to be used in the home or family. If somebody wants to record a programme in their office while they are at a meeting in order to view it when they return to their office later, it does not involve a domestic situation. This is the problem with the term "private and domestic". It is not possible now for people to record programmes in their offices while they are at meetings.
The Minister of State's press office will have trouble.
This is just one example. The Minister put forward the example of people who make recordings and then go on tour. We are proposing that the making for private or domestic use is covered anyway. That does not arise, it is a spurious argument. I suggest that by not allowing this amendment, the Minister is really restricting this to the family home as the term "domestic" clearly involves the home and the family. That is the only place one can record for private use.
With the permission of the Acting Chairperson, I will clarify that because Deputy Rabbitte referred to an office situation involving a Deputy or any member of the public recording a programme. There is no question of that person breaking the law. I appreciate the Deputy's point about the term "domestic" and I have acknowledged that there may be better language available but I suggest that we do not go as far as using the term "private or domestic", because then we will encounter some trouble as this will progress the matter into a potentially commercial area. However, I repeat what I said, that when amending the Bill at some future stage, I will ask those who have drafted it to examine it again. I give that assurance to the Deputies because anybody recording in an office situation in the context of a private, personal copy is very much protected in this legislation and that is my advice.
We cannot go down the route of allowing private copying and the Attorney General's advice is along those lines.
People may be reassured by the Minister of State's remarks and I acknowledge the spirit in which they are made, but he knows that they do not carry weight. In the event of his provision ever being challenged it would be of almost no significance to say that the Minister of State, Deputy Tom Kitt, assured us in June 2000 that this was not intended. The section will be interpreted by the courts and what was in the mind of the Minister of State will be of peripheral significance.
This legislation has been in gestation for years. As a result the Minister of State and, more particularly, his officials have been immersed in every detail of it until they must be sick to their teeth of it and are becoming more intolerant of those of us, who have happily long forgotten its detail, continuing to raise questions which they have disposed of a long time ago. However, unfortunately, it is an issue of concern in the community, even though it does not know we are enacting this legislation. That is the way we live and people use these fixations as a part of everyday life. I cannot understand why every time a judgment call has had to be made in terms of the rights holders and their interests and the public good and society, the Minister of State has invariably come down on the side of the rights holders.
For example, John Cleese has acquired a reputation in Britain apparently as a business consultant making videos relating to some aspect of communications and so on. Does the Minister of State suggest if I go home and record the John Cleese programme for private use that I could go around the country peddling it? His officials may think I might be better watching "Fawlty Towers", but anybody who is minded to record programmes can do so anyway. That is straightforward piracy. "Private" has meaning. Deputy Stanton provided the dictionary definition of "domestic" which is its clear use but "private" does not mean recording something and peddling it for commercial advantage. I do not understand how one is exposed to that. Instead, restrictive phraseology, "private and domestic", is used. The Minister of State seems to suggest that if I want to record the news in my office because I am in the House, my office is regarded as a "domestic" setting.
I do not want to labour the point but one of these days the Minister of State should take a risk and come down on the side of the hoi-polloi and see if the sky falls. I do not think it will. Such a good job has been done by him and his officials in policing the interests of the rights holders in this legislation that it is no wonder we are heading towards a monopoly where Mr. Gates will control the world. There is also a public interest dimension to this argument.
The definition of the word "private" is "for the use of one person or a group only, personal, unconnected with one's work". The Minister of State has given verbal assurances that this will not prevent people from recording programmes in their offices but I challenge him to put his money where his mouth is and include the wording in the legislation. The section includes the wording "the making for private and domestic use". Domestic refers to the home and families, not offices or statements in the House. If this phraseology is not amended, it will mean that private recording will not be allowed because it is not a domestic setting. The word "private" refers to something which is unconnected with one's work, is not commercial and is for the use of an individual or a small group of individuals. The Minister might examine it again.
Amendment No. 131 is related to amendment No. 71 and both may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 71:
In page 62, between lines 28 and 29, to insert the following:
"(2) Subject to subsection (3), the making by an establishment for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe the copyright in the broadcast or cable programme or in any work included in such a broadcast or cable programme.
(3) The Minister may specify by order establishments for the purposes of this section.".
On Committee Stage I tabled an amendment to extend the time shifting exception to allow the Minister to specify other establishments to which this section would apply, for example, nursing homes. Members also suggested amendments and considered the wording of my amendment to be confusing and, therefore, I agreed to withdraw it pending further consideration. Having considered this matter further and consulted the parliamentary draftsman's office, I propose this amendment, which makes my original amendment much clearer. I also propose an amendment to introduce a similar exception to the performers Part of the Bill, which has been overlooked.
Amendment No. 73 is related to amendment No. 72 and both may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 72:
In page 62, line 30, after "or" to insert "(otherwise than to a person's family member or friend for private and domestic purposes)".
Notwithstanding agreement to the previous amendment, there is a necessity to include this amendment for clarity. It relates to a fixation which normally would be an infringing copy but which is subsequently sold, rented and so on other than to a person's family member or friend for domestic purposes. There is limited leeway in terms of what happens in everyday life, which ought not to be prohibited or dependent on the Minister of State's assurance that he does not intend to catch such activity.
I am sorry to interrupt the Deputy, but I understand it has been agreed to suspend the sitting at 7 o'clock. If this amendment is going to be accepted I suggest we continue with it, but if not, I suggest that the House adjourn until 7.30 p.m.
I so move.
Is that agreed? Agreed.
Before the break I was setting out the reasons for the exclusion of family members as stated in amendment No. 72. In keeping with the approach I have adopted on this matter, I also seek the insertion of the words "for reward" in amendment No. 73 because that is the sense of it. It is obvious that the sale, rental, lending or offering for sale of a fixation to members of the public would be for reward. One would find it difficult to understand how a person would engage in pirating a fixation and then go out of his or her way to give it away to members of the public.
In the interests of clarity, amendment No. 73, which seeks the insertion of the words "for reward", should be accepted by the Minister. This would make it clear, if a copy is ultimately deemed to be an infringing copy for these purposes, that it was made for reward and was being exploited for commercial purposes.
I agree with amendment No. 72. This matter arose on Committee Stage when there was a discussion about what it means to loan a fixation, tape or copy to another person. We were anxious to exclude lending tapes to a person, family member or friend for private and domestic purposes.
However, I am less inclined to agree with amendment No. 73 because there is a possibility that infringing copies could be made available to the public for free. The effect of that might be to, in some cases, flood the market with infringing copies. A person who is well off could do that and the rightsholder's copies would be left on the shelf. They would not be purchased. The words "for reward" are not necessary because a person's commercial interests could be damaged by below cost selling or something being given away. This would have an even more damaging effect than selling it. However, I agree with the proposal in amendment No. 72 and I ask the Minister to accept it.
Both amendments deal with the conditions attaching to the time shifting exception. Regarding amendment No. 72, I pointed out in relation to amendment No. 69 that purely personal and domestic lending in the common meaning of the word is not lending for the purpose of the Bill. I assure Deputy Rabbitte that the amendment is, therefore, unnecessary.
Is that in section 69?
Yes. Regarding amendment No. 73, an infringement can arise from such an activity irrespective of whether it is committed for reward. International law as well as the forthcoming EU directive on copyright and the information society would not permit the qualification which amendment No. 73 seeks to insert. I ask the Deputy to consider withdrawing the amendments.
I am not persuaded by the Minister's argument that the amendment should be withdrawn. I do not see where the measure I am seeking to insert is covered in section 69. It may be there, but I cannot see it.
I note the comments of the Minister and Deputy Stanton on amendment No. 73. There is merit in both arguments but in respect of amendment No. 72, it is necessary for the situation to be explicit in relation to family members and friends. We all engage in that practice and we should not be liable to prosecution for infringing copyright because of something that is now habitual and practised every day within the narrow meaning of the phrase in parenthesis.
I do not consider it necessary but I will accept amendment No. 72.
I thank the Minister and I will not press my luck.
I move amendment No. 73a:
In page 64, line 8, to delete "50(3),".
This is a technical amendment to correct a cross reference.
I move amendment No. 73b:
In page 64, line 29, to delete "section 107," and substitute "sections 107 and 108.".
This amendment is necessary to clarify that the provisions of section 106 are subject to the exceptions in section 107 and the qualifications in section 108. It is a tidying up amendment.
Amendments Nos. 74, 75 and 136 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 74:
In page 65, line 15, to delete "the commission of an offence" and substitute "any contravention of civil or criminal law".
During Committee Stage Deputies Owen and Stanton suggested an amendment to section 107 regarding exceptions to integrity rights. This would have included a provision whereby the integrity right would not be infringed by anything done for the purposes of avoiding interference with constitutional rights or avoiding an action in common law. The Deputies considered that this amendment was necessary to ensure broadcasters could make changes to copyright works in such circumstances without infringing the integrity right.
At that time I considered the amendment would create a sweeping exception and would be vague in comparison to the specific scope of the paragraph as it stands. However, I agreed to give it further consideration. Since then, I sought legal advice from the Office of the Attorney General which shared my concerns and agreed that the proposed amendment was too vague. However, the office suggested an alternative wording which forms the basis of my amendment and which should address the concerns raised by the Deputies.
The Minister obviously has considered the points we put forward on Committee Stage. He has received advice on his wording and, on that basis, we are prepared to accept his amendment and withdraw our proposal.
Amendments Nos. 77 is an alternative to amendment No. 76 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 76:
In page 72, to delete lines 32 to 40.
Section 124 deals with the situation where a copyright owner, when an action has been infringed, may take action as appropriate and is entitled to the usual relief in damages, etc. The relevant person is entitled to the same rights that apply to the infringement of any other property right.
The difficulty I have with it relates to subsection (3) where such an action for infringement gets under way and the defendant does not admit the plaintiff is the owner of the copyright. As I understand it, the court is satisfied to take evidence on the basis of an affidavit. That is a departure from normal procedure where the person asserting that claim would have to defend it under cross-examination in court. We are shifting the burden of proof. There could be a vast amount of money involved in such a case. I query the wisdom of taking evidence on affidavit alone.
In amendment No. 74 the Minister seeks to broaden it from any contravention of criminal law to "any contravention of civil or criminal law". Litigants in other walks of life would give a lot to broaden it in that fashion. I query whether the person asserting the ownership should not also be required to defend it in the normal way and subject himself or herself to cross-examination.
On Committee Stage I advised Deputies that section 124 as currently drafted explicitly provides that cross-examination will be allowed where a reasonable prima facie response to a plaintiff's claim of copyright is made. As the text of subsection (3) states, the court may order that oral evidence be adduced if it is satisfied that “any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony”. However, as a result of the Deputy's concerns, I consulted the Attorney General's office and it advises that apart from the provision in the text, Order 40, Rule 1 of the rules of the Superior Courts clearly states that the court may, on the application of either party, order cross-examination on affidavit accordingly. While I appreciate the Deputy's concerns, I consider these amendments unnecessary.
We expressed concern about this issue on Committee Stage. Our amendment seeks to cross-examine the person giving evidence. Section 136 creates a presumption of ownership without proof. There should be the possibility in any court case of cross-examining the person giving evidence. The Minister of State did not convince me on Committee Stage that it was not necessary to include this provision. Section 124(3) states that "evidence in relation to ownership of the copyright be given on affidavit and the court may decide the issue having considered any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the court may order that oral evidence may be adduced".
If the court decides there is a conflict, it will allow oral evidence but not cross-examination. However, oral evidence does not have the same meaning as cross-examination. Did the Minister of State have an opportunity to talk to the Attorney General about the points we made on Committee Stage on including this necessary safeguard? Many of the companies which will have to implement this legislation are extremely cross about section 136. Section 124 indicates how a court case will be held.
I understand the Minister of State said that courts may order oral evidence if they so wish. Section 124(3) states, ".unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the court may order that oral evidence may be adduced". The Minister told us our amendment is superfluous, yet he has included a similar phrase. If the Minister can include it, why can we not do so when it has the same effect? We are hinting to the courts that the Legislature would be happy to see cross-examination. We want to include this in the Bill. I do not understand how it could do any harm.
I mentioned oral evidence but I did not refer to cross-examination. I consulted the Attorney General and he reminded me that, apart from the soundness of this section, Order 40, Rule 1 of the Superior Courts states that the courts may, on the application of either party, order cross-examination on affidavit. I recall we had lengthy discussions on the issue of presump tion on Committee Stage. I would like to have the opportunity to clarify that. This is central to our discussions. The advice I have is that the section is appropriate. The amendments are, therefore, unnecessary.
It is an unsatisfactory situation in the sense that the Minister is saying he has been advised by the Attorney General's office this is the way it is. I am wary of legislation where we are generous to copyright owners in protecting their property rights. Depending on one's point of view, we will either go too far or just far enough, if one is the Minister. As regards the remedies being offered to copyright owners to assert these entitlements, in what other walks of life do we change the evidentiary rules to facilitate an owner of property to assert his or her rights and entitlements? We do not do that in too many cases.
As Deputy Owen said, if a person says he or she owns my farm, that will be the case until it is proven to the contrary. That situation would not be tolerated for long in rural Ireland. However, it is suggested it should be tolerated here. The least that is required in that situation is that the person so asserting should be subjected to cross-examination in the normal way. I am a little uneasy about this. There are a few areas where we are shifting the burden of proof and it is of concern. The next amendment, which is not yet before us, relates to subsection (4) where we are making hearsay evidence admissible. That is quite a change from any laws of evidence I half learned many years ago.
I accept we are introducing a new element into law but, as I said on Committee Stage – we will deal with this when we come to section 136 in relation to presumptions – I consider it necessary in the context of the way events have been happening in the whole area of copyright. We are strengthening the law. Deputy Rabbitte said that, overall, we are favouring rightsowners. That would be appropriate for us as legislators introducing copyright law but this section deals with the position of the defendant, not the plaintiff. This is about trial management and I am satisfied from my consultations, especially those with the Attorney General, that the law is sound. We will deal with presumptions later in the debate.
Is Deputy Rabbitte pressing the amendment?
I see little point, Sir, in light of the Minister's response.
I move amendment No. 78:
In page 72, to delete lines 41 and 42.
This is more of the same. This simply states that hearsay evidence may be accepted for the purposes of any hearing under subsection (3). It is very unusual that hearsay evidence in this fashion is admissible. Most of us in recent years have become aware of In re. Haughey and the groundwork it has laid down in this area in terms of constitutional rights. That is probably not very different from Article 6 of the European convention which protects the same rights. It is very unusual. In what other area of law can hearsay evidence be accepted for the purposes set out in subsection (3)? The very notion that hearsay evidence can be used for the purposes of the affidavit and is dependent on the court ordering that one be subject to cross-examination is fraught, and I am unhappy with it.
I am unhappy with it also. We have discussed at length the complete shift in this legislation where, for the first time ever, a person will be guilty until proven innocent as opposed to being innocent until proven guilty. A copyright owner is presumed to own the copyright under section 136 in this amended Bill, and all he or she has to do is use hearsay evidence which can be accepted for the purposes of a hearing under subsection (3). I know that hearsay evidence is a terminology used in the courts but in most cases hearsay evidence cannot be used to support a person's claim to copyright. If it said that hearsay evidence may be given for the purposes of any hearing but it must be supported by other substantial evidence before it can be used, that might be acceptable, but it does not state it has to be supported with anything else. Conceivably a judge could listen to this hearsay evidence and make a decision based on hearsay evidence only. I realise this is not a justice Bill but that is my fear. I hope the Minister has taken advice on this matter from the Attorney General and that he will read it into the record to satisfy us.
I recall this debate on Committee Stage and I was anxious to have the matter examined again to see if it was necessary or desirable to delete the subsection which explicitly allows the courts to accept hearsay evidence in civil hearings for breach of copyright. I have consulted the Office of the Attorney General and it has informed me that explicit exceptions to the rule against hearsay of the type we have here are not contrary to proper legal principles. I am informed they do little more than reflect the broad practice of the courts in civil cases where hearsay evidence often will be admitted but only subject to the strict evaluation of the court as to its value as proof. I am further advised that securing this exception to the rule is in the interests of flexibility and efficiency in the conduct of civil trials for breach of copyright. While considering it a policy matter, the Office of the Attorney General would prefer to see the subsection retained.
I thank the Deputies for raising the matter. As per my commitment I consulted with the Office of the Attorney General and I would appreciate it if this amendment were withdrawn.
Is the amendment being pressed?
I withdraw it with a heavy heart, Sir.
This is great. The Attorney General is giving us all sound advice. With discussion he might be able to change his mind.
A broader view.
Amendment No. 78a is in the name of the Minister. Amendment No. 131a is cognate, so the proposal is to discuss amendments Nos. 78a and 131a together, by agreement.
I move amendment No. 78a:
In page 74, line 43, after "premises" to insert "or place".
This amendment is necessary to ensure that where infringing copies are kept in a place that is not a premises, such as a van, the purpose of this section will not be defeated. It is proposed by the Government, following technical advice from the Office of the Parliamentary Draftsman, that we insert this amendment. It is a minor adjustment.
We accept this amendment from the Minister. This matter arose because there was concern that people moving around might also have infringing copies and that they may be in a market, on the side of the road and so. I, therefore, welcome the Minister's recognition of this matter.
I move amendment No. 79:
In page 75, to delete lines 1 to 3.
This relates to the circumstances where application may be made to the District Court and where seizure of the alleged infringing copies may take place. In subsection (4), the normal procedures are departed from where a witness or the deponent shall not be obliged to indicate the source of the information upon which that witness formed the belief that material may be found in a particular location. I would rather that the Minister would explain to us why, in this particular area of pirating copies of material that could be encompassed by this section, the practices are such that it is necessary to insert a section like that where the deponent is not obliged to indicate the source of his or her information. That is an unusual leniency that one would not get in other areas of the law. Perhaps the Minister would set out his case.
I will do that. I recall the Deputy making the case in other legislation in regard to the whistleblowers' charter, although that was a different situation. The Deputy wanted to delete subsection (4). I pointed out on Committee Stage that there may be some misunderstanding as to the purpose of this subsection. It is a strictly limited witness protection measure. The idea is to protect the identity of persons such as employees who might bring evidence to a rightsholder or his or her representatives of an infringement of copyright. Where the rightsholder acquires a search warrant to secure evidence of this infringement, section 129(4) would allow the rightsholder to swear an affidavit indicating his or her belief that infringing material was present on particular premises based on the evidence of the informant without revealing the name of that informant. It is very much in line with the Deputy's thinking on another area.
It has been represented to me that such a provision is particularly important to allow rightsholders to obtain search warrants against companies indulging in, for example, software infringement where employees would be subject to a legitimate fear of dismissal should they do their public duty in the fight against copyright infringement. That is the reason behind this amendment.
It is not remarkable that this type of provision surfaces for the first time in this Bill. The country is awash with all kinds of scandals, big or small depending on one's point of view and, in most case, they are not suffering from an absence of exaggeration, but nonetheless they are serious matters.
Protection for the whistleblower is introduced in this Bill. If there is not a statue erected to the Minister of State in digital form on the top of Liberty Hall, where we can all see it, by the rightsholders after the enactment of this Bill, he is getting less than his due. The Government did not introduce such protection for the Revenue Commissioners. Tens of thousands of employees throughout the country have known there has been major tax evasion for the past 25 years but did successive Governments introduce such a measure to protect an accountancy clerk in an office to enable him or her to come forward and reveal the Exchequer was being cheated of X hundred thousand pounds? They did not, but the Government will introduce such protection for the people who are being so expertly represented here by the rightsholders societies. I do not know what type of society we will become. There seems to be many areas of law where this type of protection ought to be afforded that is not afforded, yet it can be introduced in this area.
I am doing my bit.
I appreciate the Minister of State's position on this and the point raised by Deputy Rabbitte. The only reservation I have about the amendment is that a person could put forward vexatious, malicious or damaging information and the source of the information could be protected and there might be no redress, or perhaps there would be.
Subsection (4) states a witness or deponent shall not be obliged to indicate the source of the information, but that does not mean that he or she cannot indicate that they wish to reveal it. If a person put forward vexatious or malicious information, they could be protected.
The section covers the Deputy's concern.
It is also important to protect the whistleblower.
Amendment No. 81 is an alternative to amendment No. 80, amendment No. 132 is related to amendment No. 80 and they may be taken together by agreement.
I move amendment No. 80:
In page 76, to delete lines 24 and 25, and substitute the following:
"(b) the person had no reasonable grounds for such seizure.".
During Committee Stage Deputy Rabbitte proposed an amendment to section 130 to delete the word "malicious" in the last line of paragraph (b) and to substitute the word “insufficient” to justify seizure. He maintained that where a person only gets damages if malice is proven is a rather high test and I subsequently raised this issue with the Attorney General who agrees that “malicious”, though a term which is easily understood in law, is a very high standard, but that office also has advised that the amendment proposed by the Deputy may be a somewhat vague test. The office, however, suggested alternative wording, which forms the basis of these amendments in the copyright and performance part of the Bill. Effectively these amendments arise from previous discussions and, in particular, a contribution by Deputy Rabbitte. I hope this amendment can be agreed.
I acknowledge this amendment is an improvement on the hurdle that had to be overcome. I thank the Minister of the State for introducing it.
Amendment No. 83 is an alternative to amendment No. 82 and they may be taken together by agreement.
I move amendment No. 82:
In page 78, to delete lines 36 to 45, in page 79, to delete lines 1 to 48, and in page 80, to delete lines 1 to 12.
This is an amendment to section 136 which deals with the presumptions. I do not want to repeat the Committee Stage debate on this section. The Minister of State has helped to allay concerns about this section. I assume he sought further advice from the Attorney General on the dramatic change that the presumptions will apply in civil and criminal cases. Other changes that the Minister of State has made to the legislation will help this section. The requirement that registration is compulsory will tidy up the legislation and, hopefully, there will be fewer reasons to resort to the courts.
I must, however, express grave concern about that fact that if people have to resort to the courts, they will have to resort to the controller, the assessor and take account of the rules applying to arbitration. When we come to deal with the sections relating to the controller, I will remind the Minister of State of the need for additional resources to be provided for the controller, which he should accept if he wishes to avoid a tribunal. Under the circumstances, I will not press this amendment.
The prosecution under copyright law up to now must have been woefully inadequate and deficient to warrant some of the changes the Minister of State has been talked into. In case he jumps up, I am not implying any malign motivation.
I accept that.
He has accepted the persuasive line presented by some of the lobbyists hook, line and sinker. If one told people in any other section of civil society that as long as a man in a smart suit comes along and asserts ownership of a person's car, land or site on which to build a house, that man would probably suffer personal injury, not to mention facilitating his claim in court on the basis of a presumption that he is the owner of what he says he is. I do not know what the effect of this section will be in practice. I do not know if the Minster of State knows. It is a deviation from the normal rules of evidence. Normally one is required to come to court to prove one's case. In this case, there is a presumption that one is who one says one is and one owns what one says one owns, and the contrary must be proved. That is an extraordinary change. Maybe there are characteristics of this industry that make this necessary, but on Committee Stage the Minister of State failed to persuade me that was the case.
I will try again.
We have done some draconian things as I did in the trade marks Act and so on. This is very far-reaching. If the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, came into the House to make changes similar to this in the criminal justice system the country would be up in arms. It is a bit disquieting.
He did it for asylum seekers.
We had major reservations about this matter, as the Minister is aware, and it appeared in the 1998 Act as well. At the time we talked about competition but we let it through because there was an international difficulty. As presented initially it was a major change in thinking and in law and it caused much panic among certain people. As a result of the Committee Stage and Seanad debates he has put certain safeguards in the last part we discussed about the affidavits. Another issue is pertinent here. Deputy Rabbitte mentioned lobbyists and so on. The Minister and his Department have a fantastic staff, a matter to which we alluded earlier, and officials who are working hard on this but obviously they need more assistance. I urge the Minister to seek that assistance because this is an important technical area. When the Minister is in Opposition and on this side he will have no back-up.
I have been there.
I take this opportunity to make the point that the Opposition's role in legislation such as this is not political; it is to offer an alternative view and to tease out the debate. Unlike other parliaments, in this Parliament the Opposition has no back-up service. This is getting away from the debate but it is pertinent because this is a major change. We are depending on lobbyists to advise us but that is not the way it should be. The parliament should be independent of that. As parliamentarians we should have access to our own independent advice but we have not got it. I advise the Minister to prepare the way for himself when he is on this side and to put in a good word to the Minister for Finance. We had reservations but many of them have been allayed. We hope this will go through and that it will work. We will keep our fingers crossed.
I want to give an assurance that we are doing the right thing. Some of what I have to say may be going back over old ground but it is important to put it on the record. During Committee Stage I outlined that the presumptions contained in section 136 included rebuttable presumptions of the subsistence of copyright in a work and of ownership of copyright in favour of the plaintiffs in copyright actions, whether civil or criminal. These presumptions are, in fact, already in force for civil actions for breach of copyright under the provisions of the Intellectual Property (Miscellaneous Provisions) Act, 1998, which passed through the House with some speed. The Deputy's amendment would delete the second of these rebuttal presumptions.
Deputies will understand that I did not include this section in the Bill lightly since it involves a significant shift in the evidentiary burden in copyright actions onto the defendant. There is no doubt about that. However, this was done for very pressing reasons. The position under the Copyright Act, 1963, was that in order to defend a copyright action, a defendant needed to do no more than deny, point blank, the points of claim made against them. I do not know whether I said in the House before that it reminds me of the general who just stared at the wall and denied or whatever. Maybe that is a dramatic comparison. Given the facts I have heard in regard to the background to this matter, the position of the defendant was an important matter we had to deal with. This approach – that of putting the plaintiff or prosecution on proof of the detailed points of their claim – is the usual one in many classes of action as pointed out by Deputy Rabbitte. In the case of copyright, however, it can cause particular difficulties. These occur principally where the protected material that is the subject of the case is the product of an international copyright industry, such as computer software or music recording. Under the Copyright Act, 1963, plaintiffs in such actions could be faced by defendants with blank denials of such basic matters as the subsistence of copyright in a modern song and of the plaintiff's ownership of the material, without the need to show any basis for these denials whatsoever. While we are shifting power in the plaintiff's direction, clearly there was a deficiency in that area.
In view of the complex chains of ownership which often characterise the intellectual property of the international copyright industries, this in itself can be a substantial barrier to rightsholders considering legal action to protect their rights. The position is made even more burdensome to rightsholders by a finding of the Supreme Court – the case of PPI v Cody – in which the court effectively held that affidavit evidence alone would not be sufficient to overturn denials of this sort, however unreasonable; that the deponents of the affidavits would have to be available to be cross-examined directly in the courts on the content of their affidavits. This presents holders of complex, international copyright interests with a situation in which they would need to marshall witnesses, in some cases, from a number of countries at very great difficulty and expense in order to overcome even the most transparently baseless denial of, for example, the subsistence of copyright in a song. Deputies will appreciate that this situation represented a very substantial barrier to justice for some rightsholders and, as such, it amounted to a serious breach of Ireland's obligations under the TRIPs Agreement.
It is important to remember that the section 136 presumptions represent a shift in aspects of the burden to adduce evidence only rather than a shift in the burden of proof, and that the pre sumptions will be rebuttable. It will still be necessary for plaintiffs and prosecutors to prove their case. All that the section will really require of plaintiffs is that if, for example, they wish to deny that a particular plaintiff owns a particular copyright, they will have to produce some reasonable argument or prime facie evidence to support this denial. This would then be considered by the court and, where the court considered that a reasonable denial had been made, the matter would then be tried in the normal way, with full examination of witnesses, giving the defendant every opportunity to rebut the presumptions included in section 136 in favour of the plaintiff. With these points in view, the legal and constitutional aspects of this section have been carefully considered by my Department and by the Office of the Attorney General. That office has advised that these presumptions are legally and constitutionally sound.
On Committee Stage Deputies expressed serious concern that the enactment of the section 136 presumptions, taken in the overall context of the Bill, could disturb the balance between the interests of copyright rightsholders and those of commercial users of copyright material in particular to the unfair disadvantage of users. I recall the clear suggestion that Members of the committee would have been happier if the overall balance were further adjusted in the interest of the user in particular through subjecting copyright collecting societies to a requirement of compulsory registration. We will shortly come to Government amendments which respond to the concerns of the committee on this point. That is an important relative connected point.
Furthermore, in one of the more sensitive areas of the relation between copyright proprietors and commercial users – that of sound recordings – a scheme of licensing of right, carefully devised, to safeguard the proper interest of both parties will be enacted by the new section 38, introduced by amendment 16b. In all the circumstances Deputies will agree that the Government has been able to go a long way towards meeting the concerns as to the effects of section 136 presumptions on the overall balance of the Bill. In this connection I thank Members for their contributions.
The importance of the international copyright industries to Ireland's modern economy is very great. These industries would continue to face serious difficulties in obtaining effective access to justice if this amendment were to remove the rebuttable presumption in favour of their ownership of disputed material contained in section 136(3). In view of this – I appreciate it has been a long explanation – I ask Deputies to withdraw the amendment.
I accept that that is a weighty repost from the Minister. I would have been far more comfortable if we had been able to take evidence to this effect on Committee Stage. Our beloved and esteemed Chairman is in the Chamber and I would say to him in public what I said to him in private, that lining up the various interest groups for eight hours on a single day is not the ideal way to take submissions on complex legislation. It is one of the great prerogatives of chairmen that they do not have to struggle with it line by line afterwards. The Minister said the presumptions in this case are rebuttable and that is important in law. However, adducing one case is not necessarily conclusive. There might be any set of circumstances in that case about which we do not know. We heard the rightsholder's side of the story. I heard the same arguments that the Minister has now put on record and if they are true, they must be addressed.
However, I would have been more comfortable if we could have managed our affairs in such a fashion that the alternative point of view, if there is one, might be heard. These are far reaching and draconian measures compared with anything else, aside from the Criminal Assets Bureau legislation, in our legal code and I would like to have had the opportunity to weigh up the evidence for myself on Committee Stage.
There is another caveat. The Minister said the defendants will have the opportunity to bring forward evidence and so forth to defend themselves against the presumptions. It might be difficult for some defendants to do that. The defendant might be the owner of a small pub in a rural area who is battling against an international organisation with almost limitless resources. That is the David and Goliath difficulty in that regard.
Compulsory registration will remove the danger of cowboy operators moving into the system. The rightsholders will be represented by reputable people and organisations. The controller's role has also been strengthened. As a result of the work on Committee Stage, much has been done to allay people's fears. However, what type of evidence would the defendants be expected to produce to defend their claim to be the music owners? What would be required for them to go to the next stage of a hearing or court case?
We dealt with this on Committee Stage and the situation where there is no copyright in a song, for example, an Irish traditional song. They could also argue that somebody else owned the rights.
I accept the seriousness of this change. Deputy Rabbitte held my office in the past and he will be aware that one must look at the evidence and facts available and take advice from the Attorney General, who tells me this provision is constitutionally sound. I was particularly swayed by the case where a defendant simply makes a point blank denial and repeats it. Rightsholders would have to bring witnesses from all over the world. If a song was produced and recorded in Nashville, for example, one might have to bring the engineers and everybody who was present when the CD or record was being compiled. There were important facts to indicate that this issue had to be addressed, although I accept that it is a major shift.
We are introducing compulsory registration which has regularly been advocated in this House. There is also the new section 38 inserted by amendment No. 16f2>b. I accept that we are making a major shift but it is necessary on the basis of the facts and evidence available to me.
I move amendment No. 84:
In page 80, between lines 30 and 31, to insert the following:
"(2) In this section ‘loan' means a loan for reward and in particular does not include a loan to a family member or friend for private and domestic use, and ‘lends' shall be construed accordingly.".
This relates to the offences section of the Bill, section 137. A person may be guilty of an offence if he does what is in paragraphs (a), (b), (c), (d) or (e), all of which have a commercial purpose. This is the distinction I am seeking to make in the amendment. The phrases "make for sale, rental or loan", "sells, rents or lends", "imports into the State" and so forth have a commercial business focus. I am seeking to deal with circumstances where the loan might be made without reward to a friend or member of the family. The amendment reads, "In this section ‘loan' means a loan for reward and in particular does not include a loan to a family member or friend for private and domestic use, and ‘lends' shall be construed accordingly".
As the section stands, a person can be guilty of committing the criminal offence of infringing copyright in the manner envisaged in the section, which is designed for a commercial situation, because the section does not encompass circumstances where one can do it for entirely harmless reasons to a family friend or member of the family. I hope the Minister will accept the amendment.
I accept the amendment. It is a tight call as to whether it will help the Bill but the Deputy has explained his position adequately. The concern was that friends or family members could lend copies of video tapes made under the time shifting exception in the legislation.
The legal position was that the definition of lending in section 41(2)(b), which clearly refers to lending "through an establishment to which members of the public have access", would exclude this type of private lending. Our position was that it would exclude it but I will accept the amendment.
Amendment No. 86 is an alternative to amendment No. 85 and amendment No. 133 is cognate. Amendments Nos. 85, 86 and 133 may be discussed together. Is that agreed? Agreed.
I move amendment No. 85:
In page 82, before line 1, to insert the following:
"138. – A person who, for financial gain, makes a claim to enjoy a right under this Part which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both."
On Committee Stage, Deputies pointed out that the Bill did not deal with a situation where a false claim is asserted in respect of copyright and the legislation should deal with a person who asserts such a claim for financial gain, knowing it to be false. The office of the Attorney General had advised that such a situation is already encompassed by section 137. I subsequently wrote to that office to emphasise the concerns raised by Deputies and the office replied that the situation is largely covered by section 137 but the proposed amendment might catch a number of factual situations which section 137 would not.
Accordingly, I am proposing amendment No. 85 which inserts a new section in the copyright and performance Part of the Bill. However, the penalties have been amended to coincide with those contained in sections 137 and 252. Whereas I have not gone as far as Deputy Rabbitte, I hope I am moving in the right direction.
Is it a £10 million fine?
I almost fell off my seat when I saw all the naughts. However, they were imported from an existing—
It is not to do with a particular man who is the subject of some discussion?
—Act of the Oireachtas. I acknowledge the Minister's action. My colleague, Senator Ryan, identified this aspect in the Seanad, although I am not sure that £100,000 is always prohibitive. However, it would cause one to reflect.
Amendment No. 87. Amendment No. 134 is cognate, therefore, amendments Nos. 87 and 134 will be discussed together by agreement.
I move amendment No. 87:
In page 82, line 37, to delete "requested" and substitute "requested,".
I move amendment No. 88:
In page 85, line 24, after "force" to insert "and has been certified as bona fide and in accordance with this Act by the Revenue Commissioners".
This amendment seeks to avoid a situation where a private person can create a criminal offence. In other words, there ought to be some validation. I suggest the insertion of the phrase "and has been certified as bona fide and in accordance with this Act by the Revenue Commissioners" which seems to lift it out of the realm of the private person being in that position.
Subsection (4) reads, "When a notice given under subsection (1) is in force the importation of goods to which the notice relates, other than copies of a work imported by a person for his or her private and domestic use, is prohibited". Under section 31 which deals with the provisions for preventing importation, the requirement is included to give notice to the Revenue Commissioners. I seek to make it clear by requiring that it be certified as bona fide in accordance with the Act.
I said on Committee Stage that I would ask my officials to consult with the Office of the Revenue Commissioners. I have done so on this proposal following the submission of a similar amendment in the Seanad. The Office of the Revenue Commissioners pointed out that it would not be possible for them to discharge the responsibility of verification the amendment would place on them. Any person alleging themselves to be a copyright owner, who employed the provisions of section 143 in bad faith, would certainly face serious legal action on the part of the true rightsholder and importers of the protected materials concerned.
The Minister of State is not pleading whether it is good or bad law but the Revenue Commissioners have told him they are too busy with DIRT and have not got the time to take it on board. Perhaps they ought to do so because it may be the DIRT of the future, so to speak.
Amendment 90 is an alternative to amendment No. 89. Amendments Nos. 91, 98f2>a, 135f2>a and 138f2>a are related and they may be discussed together by agreement.
I move amendment No. 89:
In page 86, line 26, after "organisation" to insert "which has been registered as such under the provisions of this Act and".
I am not sure where I stand in relation to amendment No. 138a and the discussion we have just had. It seems to me that the licensing body means not just a society or organisation as stipulated but one which has been registered as such under the provisions of the Act.
This is another important aspect of the legislation which has been debated at length. In the interests of clarity, I will be moving amendments 98a, 135a and 138a. I do not propose to accept amendments Nos. 89, 90 and 91.
I have already referred to the question of compulsory registration of licensing bodies in the context of the presumptions under section 136. This was one of the most serious policy issues to arise in the course of debate on the Bill in the select committee. The present text of the Bill would provide the facility for collecting societies formed to effect collective management on behalf of rightsholders in the copyright, performers and database fields to register with the Controller of Patents, Designs and Trade Marks on a voluntary basis. These provisions were included in the interests of promoting transparency in the activities of these organisations. My Department's contacts with the societies suggested that they appreciated the purpose of this initiative and that it was probable that all four of the collecting societies currently operating in the copyright area in Ireland would, in fact, have registered on a voluntary basis.
I was, however, impressed by arguments made by members of the select committee as to the desirability of making the registration provisions compulsory in order to ensure that the interests and operations of collecting societies would be laid open to public view through a public register. I also took note of indications from the collecting societies that they might prefer compulsory registration, because it would create a more certain environment for their operation. Finally, the introduction of the new section 38 by amendment 16b effectively requires that PPI Limited be registered compulsorily.
With these points in mind and since I preferred to see all collecting societies treated equally as far as registration requirements are concerned, I directed the Department to approach the Office of the Attorney General again for further consultations in relation to its advice that authors' rights societies such as the Irish Music Rights Organisation could not be registered compulsorily under the terms of the Berne Convention. Following correspondence and discussions, I am happy to say that the office now feels able to take a broader view of the situation and has revised its advice. The advice is that the office does not believe there is any legal impediment to adopting compulsory licensing on the basis that it seems improbable that collecting societies were contem plated in the drafting of Article 5(2) of the Berne Convention.
Having regard to the representations which he has received in the matter, and supported by the revised advice of the Office of the Attorney General, I have now decided that registration, subject to the conditions of registration already specified in the Bill, should be made compulsory in respect of all collecting societies operating under Parts II, III and V. This requirement will be supported by suitable criminal sanction in the event of non-compliance. This is the effect of Government amendments 98a, 135a and 138a.
As regards the conditions attaching to registration, I gave consideration to adding to the conditions of registration along the lines suggested in amendment 91. My conclusion was that the conditions outlined in the Bill as they stand would be unduly burdensome, not only to the collecting societies but also in some cases to the registration authority which, at least for the time being, is to be the Controller of Patents, Designs and Trade Marks. The present scheme, in combination with the general schemes of reference of licensing schemes to the controller and the supervisory function of the Competition Authority, will secure a high degree of transparency and public accountability in the operation of collecting societies. I believe this is likely to prove sufficient. I stress that I share the concerns of Deputies that collecting societies operate in a manner fully consistent with the public interest while fulfilling their proper functions on behalf of their members. Accordingly, I will certainly keep the question of the conditions of registration of collecting societies under ongoing review and I will not hesitate to bring forward amending legislation in this area should that be required.
This is an area in which the contributions of Members on all sides during the Committee Stage debate were of the greatest value in assisting me with the development of an important area of policy. I wish to convey my thanks to all the select committee members who contributed to the debate for their assistance in this difficult matter.
I appreciate and thank the Minister of State for what he is doing with amendment No. 135a. This makes it compulsory to register as a licensing body. We pressed the Minister of State very hard on this issue on Committee Stage. I am glad to see a broader view has been taken following the advice of the Attorney General. It is particularly welcome in the absence of the Minister moving to a tribunal. He has not taken that idea on board and is leaving the adjudication in the hands of the controller but he has moved some way by bringing in assessors and limiting the time for an arbitrator to make a decision.
The registration of collecting societies is very important because in the past it was informal. Very few people knew of the 1963 Act – even those involved in sectors in which copyright was important. Unless there was a court case, no attention was paid to the Act. It was far too com plicated so people trusted their luck. Registering collection societies will make the business respectable. I am not saying the licensing bodies already in place are not respectable, but the danger is that they might become complacent and arrogant in an uncompetitive atmosphere. At present a person could set himself up as a licensing agent and exact money. Now people will have to have a certificate of registration on the wall and identification to show they are bone fide licensing agents. That is good for the industry.
The music and literary industries are growing all the time. If people think there is money to be made, they will move into those areas. There was an article in a newspaper recently where a young man advocated people going into the patent industry because there was money to be made. He was not interested in the patents, he was interested in the financial cut and thrust of buying and selling patents.
I am concerned that the Minister has been so sparing in the conditions laid down. He is not as punitive as we suggested he should be in amendment No. 91. Amendment No. 135 is light on detail but there is a stronger section later in the Bill.
The Minister concluded that the conditions outlined in the Bill as they stand would be unduly burdensome. He added that in some cases the registration authority is to be "for the time being" controller of patents, designs and trademarks. What does "for the time being" mean? The note mentions additional resources for the controller who must deal with the legislation. The Minister says he cannot give the controller the additional resources he says he needs. It is like the sword of Damocles hanging over his head. If the registration authority was changed to become a tribunal, I would not object. Does the phrase "for the time being" indicate that the Minister is considering legislation to change the person who will deal with this ultimately?
Like the Minister for Finance, I do not suffer from an inferiority complex but every time Deputy Owen produces another note from the Minister, I am puzzled. I do not have these notes.
I asked my officials to distribute the notes to the Opposition spokespersons. There must be a problem with communication.
It is not the fault of the officials or Deputy Owen. I also welcome the Minister's amendment No. 135a. The collecting societies will welcome it as well. It makes sense given the professional footing on which the issue is being put and the significant commercial interests involved. The penalties in respect of summary conviction are somewhat mild given the scale of what might be involved in some of these cases but I assume people do not intend to find out about summary conviction.
I am delighted with this change, we advocated it on Committee Stage. In our proposed amendment we were anxious to ensure that the society or organisation coming forward to apply for registration would be reputable. Will there be any demand for the controller to ensure that those applying for registration will be reputable or can anyone apply? Under what circumstances can the controller refuse registration?
The controller could refuse if the applicant did not supply all of the information requested. There are only four or five organisations involved so there will not be any difficulties in the area.
Deputy Owen asked about the meaning of the phrase "for the time being". We will monitor the operations of the Act closely and see how the controller deals with situations. We are not averse to looking at the idea of a tribunal but that would be in the context of patent and design legislation as well. The tribunal could adjudicate on disputes referred to it.
The Attorney General suggested the figure for the fine. That will also be monitored.
It is probably a District Court limit.
Yes. It can be amended in future if necessary.
Does the controller have the power to remove a body from the register? Amendment No. 135a states that a body may be removed from the register for any reason. Will the Minister of State indicate the section under which the controller is given power to and the circumstances under which he or she can remove from or refuse to admit such a body to the register? Under amendment No. 90 in my name and that of Deputy Owen, a body could be refused admission to the register.
Amendment No. 98a states that a body which "fails within 6 month of the commencement of this Chapter to register under the terms of this Chapter . . . fails within 2 months of its establishment in the case of a body established after the commencement of this Chapter, to register under the terms of this Chapter, or . . . continues to operate . . . shall be guilty of an offence". However, under this amendment, bodies will automatically be allowed access to the register.
What powers will be conferred on the controller to allow him or her to investigate the background to an application? This is important because the Minister for Justice, Equality and Law Reform is currently considering ways of registering and certifying companies which provide security services. When I served as Minister for Justice, I established a working group to investigate this matter and I received its report just before I left office. It has taken a long time for action to be taken in this area. However, the recommendation of the group was that companies which provide security should be registered.
What we are attempting to achieve in this section in terms of registering bodies may be used as a template in the drafting of other legislation. We must ensure that a mechanism is put in place to allow the controller to consider the character and standing of an applicant. For example, could a person who served a five year prison sentence for a crime they committed apply to become a collector? Is there a provision under which certain people can be prevented from becoming collectors? We must remember that these people will be collecting money and passing themselves off as the owners of copyright and, therefore, we will be dependent on their honour. Deputy Stanton is correct, the controller does not appear to have power to investigate these people's bona fides.
The matter to which the Deputies refer is covered in section 175(1) which states:
The Controller may refuse an application for renewal of a registration by a licensing body registered under this Part or cancel the registration of a licensing body where the body no longer fulfils the requirements specified in section 171(5).
In addition, section 171(6) states that the information to be prescribed by the Minister shall include the name and address of an applicant, the names of the chairperson and other members of the board, a copy of the memorandum and articles of association and the details of a scheme. In other words, the controller would have to be satisfied that the information provided was correct. If something is found to be amiss, an application may be refused under section 175.
Section 175 deals only with applications for renewals of registrations or the removal of existing bodies. We are concerned about instances involving the first application for registration.
Under section 174, "A certificate of registration issued under section 171(7) shall be valid for 12 months from the date of registration" and this would provide some degree of protection. Therefore, a person will only have a certificate of registration for 12 months.
A person who obtained a certificate of registration and proceeded to collect money could do a great deal of damage in 12 months.
I appreciate that. However, section 174 provides a degree of protection and section 171 obliges the organisations to provide any information requested by the controller. In my opinion, sections 171, 174 and 175 provide adequate safeguards.
The Bill contains no mechanism to allow the controller to refuse an initial application once the conditions in section 171(6) have been met.
That is correct.
The controller will, therefore, be obliged to accept an application in such circumstances. Perhaps it would be appropriate to include a provision in section 175 which will allow the controller to refuse an application or an application for renewal.
Section 171(5) states that "The Controller shall register an applicant or renew a registration where the Controller is satisfied that . . ." I believe this covers the points raised by the Deputies.
The Minister of State is correct because section 171(5)(b) provides that the controller shall register an applicant or renew a registration where he or she is satisfied that "the applicant has provided such information and satisfied such conditions as may be prescribed by the Minister for the purposes of registration". In light of that fact, the Minister of State, in prescribing such conditions, could take on board our concerns.
Amendment No. 91a. Amendments Nos. 92a and 134a are cognate; therefore, the three may be taken together by agreement.
I move amendment No. 91a:
In page 90, line 36, to delete "Controller" and substitute "operator".
These amendments are technical in nature and are designed to correct an earlier error. Where a person has benefited from an order of the controller under these sections, he or she must give an undertaking to the operator of the licensing scheme and not the controller that he or she will pay the charges when the controller ascertains them.
We have reached the stage where it is essential to request our colleagues to join us. I wish to call a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I move amendment No. 92:
In page 90, between lines 42 and 43, to insert the following:
"(8) A person who applies, in a case to which a licensing scheme relates, to the operator of the scheme for a licence in accordance with the scheme, is in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned from the date the application is received by the operator of the scheme until–
(a) a licence is granted by the operator of the scheme, or
(b) where a licence is refused, until the Controller grants an order under section 150, provided the applicant has applied for that order within a reasonable period of the refusal by the operator of the scheme and has complied with the conditions determined by the Controller, or until the Controller refuses an order under section 150.".
I wonder whether this amendment is still relevant in view of the impending introduction of compulsory registration for licensing bodies. The amendment seeks to ensure that a person can continue to operate until the controller refuses an order under section 150. Did the Minister have an opportunity to consider this amendment following Committee Stage in view of the changes he has made in regard to licensing bodies and registration? What advice has he received on the need to retain this provision?
A change of this kind would really only benefit the commercial users of sound recordings. Their situation is now effectively covered by the new section 38, proposed in amendment No. 16b, particularly by section 38(3), the effect of which will be much the same as the proposal contained in the amendment. The new section 38(3) states:
A person who satisfies the conditions specified in subsection (2) shall be deemed to be in the same position as regards infringement of copyright as if he or she had been the holder of a licence granted by the owner of the copyright in question at all material times.
Consequently, I do not believe this change is required and I ask the Deputy to withdraw her amendment.
I move amendment No. 92a:
In page 92, line 6, to delete "Controller" and substitute "operator".
I move amendment No. 93:
In page 93, before line 1, to insert the following:
"159.–Where a person (including an
undertaking or company) includes in a broadcast or cable programme any sound recordings and who–
(a) complies with any reasonable condition or notice supplied to them by the licensing body, and
(b) provides that licensing body with such information about their inclusion in the broadcast or cable programme as it may reasonably require, and
(c) makes payments to the licensing body that are required by the section and notified to the licensing body or in accordance with the amount which has been agreed by an order of the Copyright Controller,
such a person shall be in the same position as regards infringement of copyright as if that person was at all times the holder of a licence granted by the owner of the copyright in question. Where this section applies to the inclusion in a broadcast or cable licence, it does so in the place of any licence.".
This matter is also covered by the new section 38.
Amendment Nos. 94 and 97 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 94:
In page 98, line 28, to delete ", 88, 101".
In addition to certain educational copying exceptions, it was originally intended to allow two additional categories of exceptions to be overridden by a licensing scheme certified under section 169. These were the copying of abstracts of scientific or technical articles under section 88 and copying for the purpose of providing modified works to disabled persons by non-profit bodies under section 101. This decision was subsequently reconsidered and it was decided that very minor exceptions of public benefit could be granted out and out unqualified exceptions without fear of significant damage to the interests of rightsholders. Accordingly, these categories were removed in the Seanad from the scope of the certification provisions. Amendments Nos. 94 and 97 are technical amendments to section 169 which are required as a consequence of this change and which were overlooked in the Seanad.
Amendments Nos. 95, 96 and amendment No. 1 to amendment No. 96 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 95:
In page 98, line 30, to delete "it".
Amendments Nos. 95 and 96 are designed to meet a concern expressed by the Irish Copyright Licensing Agency, the collecting society operating collective management of reprographic copyright rights in Ireland. The ICLA was concerned that the present text of section 169 could exclude its schemes from certification under that section because it routinely collects royalties from persons not affiliated to the organisation, a fact which raises doubts as to the possibility of identifying the works to which its licensing schemes are applied with sufficient certainty to meet the tests set by the current section. I am indebted to Members from all sides of the House for helping to draw attention to this difficulty on Committee Stage.
While I remain less than convinced that the present text would have presented a reasonable Minister with any real difficulties in certifying ICLA schemes, it is not my wish to entertain any possibility of setting unreasonable barriers in the way of any collecting society going about its normal, legitimate business. Accordingly, I am happy to make the change embodied in amendment No. 96 which shifts the emphasis from the ability to identify a body of works with reasonable certainty to the Minister who must satisfy himself or herself that the licensing body in charge of the scheme is representative of a substantial proportion of the relevant rightsholders.
I am not disposed to accepting amendment No. 1 to amendment No. 96. I have considered representations from the ICLA on this point and appreciate its wish to be doubly sure about this matter. However, I do not believe that changing the word "proportion" to "number" will help. It could be argued, for example, that a substantial number will only be judged by reference to a total number. It is the impossibility of knowing the identity and overall number of people it represents which caused the ICLA's problem with the current text.
It is interesting to note that when the ICLA's international confederate body made representations to me seeking to change section 169, it indicated that a test based on the ability of the collecting society to show it represented a "significant proportion" of the rightsholders concerned would be satisfactory. Under amendment No. 96 as it stands, a reasonable Minister would be even less likely to have a difficulty certifying ICLA licensing schemes under section 169 than he or she would under the present text. With due respect to the ICLA, I do not believe there would be any benefit to amending amendment No. 96 as proposed in amendment No. 1 to amendment No. 96. I ask the Deputies concerned not to move the amendment.
I welcome the Minister's recognition that a problem existed in regard to the ICLA which was concerned about its eligibility to be a licensing body. The ICLA remains concerned about the use of the word "proportion" in the new wording because it feels its openness to interpretation could prove problematic. The ICLA believes that the phrase "substantial proportion" implies a need to know the total number of rightsholders in the relevant category of works to which the scheme applies as a prerequisite to judge whether it actually represents a substantial proportion of rightsholders. The ICLA, for example, holds mandates from most Irish book publishers of note but the organisation goes on to explain that the word "publisher" includes publishers of once-off books and those who publish on the Internet. It also holds mandates from a handful of publishers of journals.
How does one determine a substantial proportion of an unknown figure? Fifty is a substantial proportion of 100 but not of a larger number. If the word "number" replaces "proportion" in the section it will not be necessary to know the total number. That is the kernel of the submission from the ICLA to the Opposition and the Minister of State.
He may have received a submission from the international body recommending the use of the word "proportion" but discussions and conversations can lead to people taking a broader view. Clearly the ICLA has looked at this document and decided to take a broader view and recommend the word "number". The ICLA represents about 300 people who are members of the Irish Writers' Union but no one knows how many Irish authors exist. Two hundred is a substantial proportion of 300 but not of 1,000 and there may be 1,000 Irish authors who are not members of the Irish Writers' Union.
The amendment would not have an adverse effect on the Bill and I hope the Minister of State will accept it.
Proportion assumes a need to know the total amount, number does not. The amendment is reasonable and would improve the section enormously.
I have no difficulty accepting this amendment. Perhaps both words could be included?
That might cause more confusion.
I move amendment No. 96:
In page 98, to delete lines 31 to 35 and substitute the following:
"(a)the licensing body in charge of the scheme is representative of a substantial proportion of rightsholders in the category of works to which the scheme is designed to apply, and
(b)the scheme sets out clearly the charges payable and the other terms and conditions on which licences are to be granted.".
I move amendment No. 1 to amendment No. 96:
In the second line of the new paragraph, to delete "proportion" and substitute "number".
I move amendment No. 97:
In page 98, line 38, to delete ", 88, 101”.
I move amendment No. 97f2>a:
In page 100, line 23, after "in" to insert "section 38 or in”.
I move amendment No. 97f2>b:
In page 100, between lines 26 and 27, to insert the following:
"(6) The information prescribed under paragraph (b) of subsection (5) and supplied by the applicant for registration shall be placed on the Register, and applicants may apply to the Controller to have such information revised from time to time as circumstances may require.”.
This Government amendment is really a management provision in relation to the keeping of the register of copyright licensing bodies registered under sections 38 and 145 of the Bill. Its terms are really implicit in the section as it stands. However, in view of the particular importance of the register in the field of copyright following the introduction of section 38, I wanted to leave no doubt as to the ability of copyright licensing bodies to update information on the register to have this information updated as and when required, rather than on renewal of licence.
As independent licensing bodies are much less likely to be an important feature in the performers' rights or database right areas, I have not felt it necessary to carry this particular provision forward into the later parts of the Bill. However, I will keep this matter under review and, should my expectations in this regard prove misplaced, an amendment in the context of the amending legislation which will certainly be required to transpose aspects of the forthcoming EU directive on copyright in the information society will be considered.
I move amendment No. 97f2>c:
In page 100, lines 28, after "include" to insert ", as appropriate,".
I move amendment No. 97f2>d:
In page 100, line 39, to delete "and".
I move amendment No. 97f2>e:
In page 100, line 41, to delete "applicant." and substitute "applicant; and".
I move amendment No. 97f2>f:
In page 100, between lines 41 and 42, to insert the following:
"(h) in the case of a licensing body within the meaning specified in section 38, the names of the rightsholder or rightsholders in respect of whom the body concerned claims entitlement to receive payments under that section.”.
Amendments Nos. 98 and 135 are related and may be discussed together by agreement.
I move amendment No. 98:
In page 100, after line 44, to insert the following:
"(8) The Controller may refuse registration to a licensing body if he or she considers that the scales of charges or proposed charges to be levied under section 171(6)(f) are excessive or inequitable. The Controller shall review the scheme and determine a just and fair scale of charges.”.
This amendment provides a safeguard which may already have been incorporated in one of the Minister of State's proposals. The provision allows for independent arbitration by the controller with regard to charges.
I refer to my comments in our discussion of compulsory licensing following amendment No. 89. I do not think it would be reasonable at this stage to place burdens of verification of this nature on the controller nor do I think that imposing the burden of satisfying them on licensing bodies would be necessary or fair. I prefer the approach taken in Government amendments Nos. 98a, 135a and 139a but I will keep the question of conditions of registration under active review and will not hesitate to amend them should later developments show this to be necessary or desirable.
What avenue is open to the user if charges are deemed to be excessive or inequitable? This amendment would allow a fast method of decision by the controller in such cases. What can the user do if he or she thinks charges are inequitable or excessive? Is there any way of appointing a person who can move in and examine the situation and decide whether the rightsholders are justified in asking for this money? Then somebody would be able to indicate what amount of money would be fair without having to go to court. It would be useful. The Minister keeps saying that he will not put the burden on the controller but it surely comes back to resources where the controller is concerned. The Government should provide the resources for the controller so that he or she can do the job he or she is being asked to do. Similarly, the resources should be supplied to the Department section and possibly to the opposition.
Section 173 refers to:
A licensing body registered under this Part which proposes to impose a charge, otherwise than in accordance with the scales of charges included in an application for registration or for renewal of a registration, shall provide the Controller in writing with details of the proposed charge not less than one month before the charge comes into effect.
That is with regard to notification of charges. The user can apply to the controller in relation to charges levied by the collecting society. We have improved the whole system with regard to speedy adjudication. The Deputy's concerns are met with the Bill as amended.
I remind the Minister of section 171, subsection (5)(b) where the controller is, ab initio, registering an applicant or renewing a registration and has to satisfy himself that certain things are done and that the Minister can also prescribe certain issues for the purposes of registration. I ask the Minister to consider this amendment in light of that. He may be able, in what he is prescribing, to lawfully include some indication that if the scale of charges proposed to be levied is excessive or inequitable, the controller could examine that and adjudicate on it. If the Minister does not accept the amendment, he might be able to include the principle of it in some other way.
I will consider that.
I move amendment No. 98f2>a:
In page 101, between lines 39 and 40, to insert the following:
"Obligation of collecting societies to register (copyright).
177.–(1) Any body operating as a licensing body within the meaning specified in section 38 or 145 shall be obliged to register in accordance with the provisions of this Chapter, and to remain registered for so long as it continues to operate in this capacity.
(2) Any body to which the provisions of subsection (1) applies which–
(a) fails within 6 months of the commencement of this Chapter to register under the terms of this Chapter,
(b) fails within 2 months of its establishment in the case of a body established after the commencement of this Chapter, to register under the terms of this Chapter, or
(c) continues to operate as such a body having been removed from the Register for any reason, shall be guilty of an offence.
(3) A person guilty of an offence under subsection (2) shall be liable–
(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.".
I move amendment No. 98b:
In page 103, line 3, to delete "subsection (1) or (2)” and substitute “subsection (1), (2) or (3)”.
This is essentially a technical amendment required to ensure that the provision of section 178(5), dealing with joint authorship, also applies to works qualifying for the protection of Irish copyright law by virtue of their connection with convention countries to whom the protection was extended by an order under section 183. I am advised that no similar provision is necessary in relation to works connected to Irish copyright law by an order under section 184, as the lack of a general obligation to such countries under international law and the drafting of section 184 would allow such matters to be dealt with in the context of the section 184 order itself.
There are no current proposals to make copyright treaties with non-convention countries on a bilateral basis and any possible need to make such a treaty is being rapidly and progressively reduced by the fact that more and more countries are joining the Berne Convention and the World Trade Organisation.
I thank the Minister of State. That is as clear as mud.
I move amendment No. 99:
In page 103, line 38, after "database" to insert "or a computer program".
I seek to establish with the Minister of State why "computer program" has been dropped in this context. If he can explain that to me, I will withdraw the amendment.
Very simply, this section covers literary works. As the definition of a literary work contained in section 2 clearly specifies that it shall include a computer programme, this amendment is unnecessary. Consequently, I ask the Deputy to consider withdrawing this amendment. It is not necessary.
Tautology, is it?
I accept that and I withdraw the amendment.
Amendments Nos. 99f2>a, 100a, and 101a are cognate and may be discussed together by agreement.
I move amendment No. 99f2>a:
In page 104, line 35, to delete "First” and substitute “Third”.
This is a technical amendment to correct a cross reference.
I move amendment No. 100:
In page 104, to delete lines 38 to 45.
This amendment would excise lines 38 to 45, essentially section 183 (3). My net point is that power is conferred on the Government here to unilaterally amend the Act, change the scope, make fundamental renovations to the legislation without coming back to the House, purely on the basis that whatever multilateral or international conventions are entered into are automatically imported into the law here. This is not a good principle. As it has been 37 years since we last brought the law up to date, I fail to see the urgent necessity for it either.
We on this side of the House, feel that subsection (3) gives the Government a degree of flexibility in responding to the emergence of new international agreements in the area of copyright and importantly, in adjusting the scope of national treatment to the particular scope of new agreements which may only address particular elements of copyright protection rather than its whole scope. We feel it is necessary and I regret I cannot accept this amendment to delete subsection (3).
I take it that, in general, international or multinational treaties or conventions to which Ireland might become party in years to come, need national legislation to implement them. Am I correct in saying that this just gives the Government the power to add to or delete from the list of agreements to which we are party but if we were adopting, or at European level, agreeing another convention or a directive, generally they would have to be imported into Irish law by legislation. From that point of view, there is the protection that the Dáil is not being bypassed. We might agree to an agreement but it might not become operable until we have passed legislation in this House.
The Deputy is right. These are international agreements. This gives us some degree of flexibility in that area. As the Deputy knows, there is always some scope within the provisions of directives to make adjustments, but the Deputy is right in suggesting that is the import of this section. We feel it is necessary.
The point is straightforward and simple enough. Copyright legislation or intellectual property generally is not the only area where this country must enter into multilateral agreements and subscribe to international conventions. What is the practice in other areas? Is this a shortcut by the Minister and his officials to ensure that they do not have to return to this House again with primary legislation by providing an enabling section in this Bill that will permit the automatic importation into Irish law of new agreements or parts of new agreement that might be concluded in the future? This a straightforward point. Since we joined the EU, for example, there have been many such instruments and in most cases they require primary legislation or a certain process must be undertaken in terms of regulations to be made and the Oireachtas Joint Committee on European Affairs has an opportunity to comment on them, etc. I still do not know, following the Minister of State's remarks, what exactly is the situation in respect of the amendment and section 182(3).
It does. This is very much a management issue also in that flexibility is given to the Government of the day with regard to international agreements. The Deputy is correct. The Minister of the day would not have to come into the House every other month or year to effect new legislation based on international agreements and, therefore, it provides flexibility in that area.
Is there any precedent for that?
I am told that the Attorney General again supports this view. I referred earlier to the fact that there will be developments at EU level on copyright. We are coming into the House after 37 years and it will not take that long again before the broader issue of copyright will be revisited but this clause provides space and time for the Government of the day.
It is a peculiar subsection. I assume that if the Government makes an order, it must be laid before the Houses of the Oireachtas in the normal way and approved before it takes effect. That provision would be there. Sometimes such orders are laid before the Houses and are not debated, which is Deputy Rabbitte's point. We have all discovered how important and weighty legislation such as this is and how far-reaching it can be; therefore, we are a little wary of short cuts. We have already witnessed the benefit of detailed debate on this legislation in both Houses. We would be loathe to agree to this, especially when lists of international agreements can be deleted or added. If they are factored into the legislation, the Act could be totally changed by an order of the Government of the day and that is not acceptable. Perhaps the Minister will inform us whether that is the case.
Section 183(1) states: "The Government may make an order to extend the provisions of this Part . . .". Does "Part" refer to all the sections in Chapter 18?
Minister of State, I understand you have already spoken twice. Given that Deputies Stanton and Owen have come back in, as they were entitled to, do you want to make a brief comment and I will call Deputy Rabbitte to make the concluding contribution on this amendment?
In response to Deputy Owen, the reference in section 183(1) is to the copyright Part. With regard to the question on agreements, they are listed under the Third Schedule. In response to Deputy Rabbitte, my understanding is that there are similar provisions in other legislation. I do not have the precise references.
The agreements are listed in the First Schedule.
We changed that from the First Schedule to the Third Schedule by Government amendment.
Amendment No. 99.
There has been discussion and banter all day about different people on different sides of the House. Were it not for the last EU Presidency, the Minister of State would be on this side of the House. I do not mean that in any personal sense. The last EU Presidency took up so much of the time of the then Cabinet that other matters were not focused on and nobody cared much, yet one had to do a good job because if one did not, one would hear all about it. I am a little concerned about a scenario where the Minister of the day attends meetings of the Council of Ministers, new legislation is agreed in this obscure area and it can be more or less automatically imported into Irish law without this House scrutinising it or having any say in it or knowledge about it or input.
With all due respect to the Minister of State's overworked officials, it is not good practice. The Minister of State said there were precedents but he does not know what are they. There may well be precedents but it is still a bad idea. Earlier, Deputy Owen correctly referred to the fact that nobody knew the detail of the Copyright Act, 1963, but one can bet one's life that very few people, other than those in the Public Gallery, will know the detail of this legislation. It is not a good democratic principle to include a wide, catch all, enabling section to permit legislation enacted in Europe to be imported automatically into Irish law. This legislation may not be widely known or understood but it is terribly important in the context of an economy in the information age. It is a bad principle and I cannot understand the reason for it. The Minister of State has more or less told us on a number of occasions and, latterly on Deputy Stanton's droit de suite amendment, that he or whoever is in his position, is likely to come back to the House in the not too distant future.
We have waited 37 years for this renovation. Why must this enabling clause be included? It is anti-democratic and I am unhappy about it. I would like to know what are the precedents elsewhere. I cannot believe that they would be extensive.
I move amendment No. 100f2>a:
In page 104, line 40, to delete "First” and substitute “Third”.
Amendments Nos. 101 and 102 may be discussed together by agreement.
I move amendment No. 101:
In page 104, line 40, to delete "to this Act".
These amendments are of a technical nature. As Deputies may remember, on Committee Stage Deputy Rabbitte tabled an amendment to delete the phrase "to this Act" from subsection (2) of the section. To ensure consistency I am proposing these amendments to delete the phrase from subsection (3) and subsection (5) where the phrase also occurs. The amendments seek to put some degree of order in this section following Deputy Rabbitte's suggestion.
Amendment No. 101a has already been discussed with amendment No. 99a.
I move amendment No. 101f2>a:
In page 105, line 7, to delete “First”and substitute “Third”.
Amendment No. 102 has already been discussed with amendment No. 101.
I move amendment No. 102:
In page 105, line 7, to delete "to this Act".
Amendment No. 103 arises from committee proceedings.
I move amendment No. 103:
In page 107, to delete lines 3 and 4 and substitute the following:
"(4) Government copyright shall expire in like manner as other copyright.".
I thought I saw a ministerial amendment somewhere that was somewhat of an improvement on mine. Is that not right, or was it about a different matter? The amendment seeks to excise section 186(4), which states that "Government copyright in a work shall expire 50 years from the end of the calendar year in which the work was made", and replace it with the new subsection (4) stating that "Government copyright shall expire in like manner as other copyright". I think that is an improvement. I thought, however, that I had picked up an amendment from the Minister that was an improvement on that again. In any event, my new subsection (4) would be better than what is in the Bill at present.
I think I mentioned on Committee Stage that it is not possible to set a Government copyright by reference to other forms of copyright as they are usually measured in terms of the life of the author. We have made this point before. In the case of Government copyright there is no relevant life against which to measure it. Deputies will recall that the Bill has been amended so that Government copyright now expires after 50 years from the creation of the work. For these reasons, I hope the Deputy can withdraw the amendment. We now have copyright expiring after 50 years and I hope Deputies can accept that.
Am I not right in saying that in other parts of the Bill copyright was for 70 years? I understood that was the import of what Deputy Rabbitte was doing. Why have a 50 year expiry date for the copyright on one work and 70 years for others?
The Deputy is right, but on Committee Stage we discussed a period of 125 years for Government copyright and we have now reduced this to 50 years.
It is better.
It is better but I do not know why there is not uniformity.
Amendment No. 103f2>a has already been discussed with amendment No. 7f2>b.
I move amendment No. 103f2>a:
In page 107, line 13, before "enactment" to insert "Bill or".
Amendment No. 104 has already been discussed with amendment No. 7b. Is the amendment being pressed?
No. I thought that with the Minister's amendment, it would not even be put. Are we able to move it?
We cannot discuss it because we have already discussed it.
We cannot have a discussion on it again.
I move amendment No. 104:
In page 107, between lines 18 and 19, to insert the following:
"(3) It shall not be an infringement of copyright to copy an enactment.".
It is such a simple way of dealing with the matter.
Amendment No. 105a has already been discussed with amendment No. 7b.
I move amendment No. 105f2>a:
In page 107, line 35, to delete "other than a Bill".
Amendment No. 105b has already been discussed with amendment No. 7f2>b.
I move amendment No. 105f2>b:
In page 107, line 38, to delete "Subject to subsection (5), for” and insert “For”.
Amendment No. 105f2>c has already been discussed with amendment No. 7f2>b.
I move amendment No. 105f2>c:
In page 108, to delete lines 1 to 5.
Before putting amendment No. 105f2>d, there were amendments to the main amendment. Amendments Nos. 1 and 2 to amendment No. 105f2>d have both been discussed with amendment No. 7f2>b.
I move amendment No. 105f2>d:
In page 108, to delete lines 13 to 29 and substitute the following:
"189.–(1) Subject to subsections (2) and (3), a permission to copy or to make available to the public any work, Act of the Oireachtas, Bill or other material protected by Oireachtas copyright under the provisions of this Chapter may be granted to any person.
(2) The conditions upon which any work, Act of the Oireachtas, Bill or other material protected by Oireachtas copyright may be made available under this Chapter shall be those imposed from time to time on such materials by the Ceann Comhairle of Dáil Éireann and the Cathaoirleach of Seanad Éireann or an officer or employee of the Houses of the Oireachtas duly authorised for that purpose by the Ceann Comhairle of Dáil Éireann and the Cathaoirleach of Seanad Éireann.
(3) The conditions upon which any work, Act of the Oireachtas, Bill or other material protected by Oireachtas copyright may be made available under this Chapter shall be laid before each House of the Oireachtas as soon as may be after they have been imposed.".
Amendment No. 106a has already been discussed with amendment No. 7b.
I move amendment No. 106f2>a:
In page 108, to delete lines 36 to 46.
Amendment No. 107 arises out of committee proceedings.
I move amendment No. 107:
In page 110, line 4, after "section" to insert ", or, in the case of the authority specified in paragraph (a), the publisher of any book published in the State,”.
This amendment relates to the statutory book deposit scheme rather than to copyright proper. It is designed to allow the National Library of Ireland only to seek delivery of all books published in Ireland within the meaning of this section, which is to say, all books commercially circulated in Ireland. It is understood that the National Library would use this power to strengthen its referenced collection of works of Irish interest, irrespective of their place of first publication. This change follows from consultation between my Department and the Department of Arts, Heritage, Gaeltacht and the Islands, and I am happy to endorse it.
I should remind Deputies that the book deposit scheme is associated with copyright only in a historical sense. Deposit of books, in particular in libraries, was once a requirement placed on persons wishing to enjoy copyright protection for their works. However, this has not been the case in either Irish or UK law for a long time and would now be forbidden by the Berne Convention as a formality precedent to the enjoyment of copyright.
The book deposit scheme is now quite simply a levy on publishers which is justified by educational and national heritage considerations rather than anything much to do with copyright. The present scheme has grown in a rather unstructured and unconsidered way – a fact which has been the cause of considerable happiness to publishers in particular.
As the Minister with responsibility for legislation which contains this scheme for purely historical reasons, I am not particularly happy with the situation. Accordingly, as soon as time and resources permit, I will be promoting an interdepartmental inquiry aimed at making recommendations to the Government on the future of the book deposit scheme. In the meantime, and in the absence of full consideration of the issues, I would not be anxious to disturb the present scheme more than is strictly necessary through the enactment of the present Bill.
This matter was raised with us during a submission by people who appeared before the committee. I was taken by the valid point that, from time to time, a very small print run is done on books. I do not want to diminish the archives of material published in this country in any way and I fully respect the fact that a book deposit system has to be in place. I have heard arguments from both sides: one from the Trinity College library in Dublin, and the other from one of the smaller book publishing companies.
I want to deal with the concept of free copies of books that have to be given to a variety of libraries. On Committee Stage, I worked it out that approximately 13 copies of a book have to be deposited. If a publisher is only producing a print run of 100 books, that is quite a sizeable proportion. The company which wrote to me about this scheme said that, on average, it dispatches on a yearly basis approximately £18,000 worth of books under the 1963 legislation. It made the point that in today's terms, that is equivalent to a salary and it would rather use some of that money to employ another person.
The argument is not being made that it should not deposit copies of the book in the National Library and the British library. However, its point is that the burden of gratis copies to all the other libraries is heavy for a small run of books. There is no problem if the run is above 300 copies. It is not unreasonable to deposit books in those circumstances, but it is different if it is a selective publishing run of a special book.
However, the counter argument has been made by Trinity College, which indicated that it has a good relationship in terms of all UK published material. It receives a copy of every UK published book and material. It pointed out that the material it received last year was equivalent to £4.97 million worth of books. That is a nice deposit to receive in the form of books. Trinity College recognises the concerns of people producing small runs and it suggested that perhaps the financial burden on publishers, and particularly limited or highly specialised publishers, could be addressed by means of a fiscal concession issued on the production costs of the deposit copies supplied.
I thank the Minister of State for his indication that he intends to consider the concept of book deposits again to ensure that it is good for the country but does not cause any unnecessary hardship to the publishers of small runs of books. On the basis of his promise to return to this issue in the new Bill that will be introduced shortly or by another method, I will not move my amendment.
I move amendment No. 110:
In page 110, lines 34 to 36, to delete all words from and including "being" in line 34 down to and including line 36 and substitute the following:
(a) one of the forms in which the book is made available to the public, and
(b) electronic format,
and the person who first lawfully makes available to the public the book shall deliver it in the forms requested.".
This matter was discussed earlier but I am interested in the Minister of State's views on it. It relates to people who are challenged in various ways and the making available of books in electronic form.
On Committee Stage I proposed an amendment, which is now section 193(11) on page 111. The effect of the new subsection is substantially the same as that proposed in the amendment and, therefore, it is unnecessary. The matter has been addressed.
Amendments Nos. 111 and 112 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 111:
In page 111, line 22, after "£500" to insert "and to pay such sum not exceeding the value of the book as the court may decide which shall be paid to the trustees or authority to whom the book should have been delivered".
On Committee Stage Deputy Rabbitte suggested an amendment to insert, after "£500", the phrase "and in addition the person shall be liable to be ordered to comply with this section". I outlined at the time that the advice of the Attorney General's office was that this amendment was not necessary as it is implicit that all sections of the Bill must be complied with.
However, I have given the matter further consideration and I am of the view that publishers who do not comply with this section should, as well as the fine, be liable for the value of the book which should be paid to the trustee or authority to whom the book should have been delivered. Accordingly, I tabled the amendment which addresses Deputy Rabbitte's concern in this regard.
I appreciate the Minister of State's goodwill in the matter but I wonder if we are ad idem? Is he suggesting that, in addition to the fine, one will have to pay the equivalent value of the book to the trustees or the authority to whom the book should have been delivered? My point was that paying the fine should not exonerate one from delivering the book.
That is right.
I was not seeking to raise a levy for the relevant authority. Perhaps he could reconsider his advice on this matter. I am a little surprised that the notion of penalising a person outside a straightforward fine by way of raising a tax for the National Library or whoever else got past the parliamentary draftsman. The idea was that it might be worthwhile, not least in the type of situation Deputy Owen outlined earlier, to pay one's £500 fee and not deliver the book. The book is the important aspect but perhaps the Minister of State could outline his views in that regard.
I remember this discussion. The person should be obliged to pay the fine if he or she breaches the section, but also to deliver the book. The argument I made when I was a member of a county council was that the payment of a levy for car parking was no use because one cannot park on a levy, unless it is a levee at the side of a river.
One cannot park on £500. The idea in this area is that books or magazines should be deposited. The fine will go to the courts and the library or institution which should have received the book will not benefit. Unless the phrase "and this shall be spent on purchasing the book" is inserted after the term "paying the sum not exceeding the value of the book", the Minister of State will not have taken on board Deputy Rabbitte's valid point. The person must pay the fine but the book or magazine must also be produced and the body receiving the money should be obliged to buy the book. Otherwise, a poor box type fund could be built up if material was not being handed over and this could be a difficulty.
I accept the Deputies' points. We are dealing with Report Stage of the Bill so this matter must be addressed one way or another. We endeavoured to pursue the issue in a certain way and the best solution I could suggest is that I and my ministerial colleagues will consider the book deposit scheme in the context of the interdepartmental review. I assure the Deputies that this will be done in view of the comments made. In the meantime, I ask the Deputies to accept the amendment.
Perhaps the section should not be amended if it is to be considered in the review. Paying a sum not exceeding the value of the book will not mean that the library receives the book, but perhaps it is better than nothing.
I do not understand what is wrong with Deputy Rabbitte's proposal. He is suggesting that if a person fails to comply with the section, he or she must pay a £500 fine, which, as Deputy Owen said, goes to the courts, and then comply with the section. The Minister's suggestion is that if a book is worth £10, the person must pay that amount. If the book is rare or, as Deputy Owen said, part of a small run, it would be impossible to put a value on the loss to the institution concerned. The institution should get the book. The money is no good to it if the book is not available for purchase. The Minister of State is defeating the purpose and I urge him to accept Deputy Rabbitte's amendment.
I said on Committee Stage that the Attorney General's advice on Deputy Rabbitte's amendment, which states that "and in addition the person shall be liable to be ordered to comply with this section", was that it was not necessary as it is implicit that all sections of the Bill must be complied with. I have made one suggestion as to how we might deal with this and Deputy Owen suggested I should consider withdrawing my amendment. I do not have a problem with the views of the House. However, we should accept my amendment which strengthens the provision. I acknowledge there is an issue to be addressed in the context of the interdepartmental review of the book deposit scheme.
We have frequently done things which are more seriously wrong than adding a few words which are supposedly tautological, according to the Attorney General. Is it the case that if one is fined for breaching a provision of an Act, one is required to comply with the section breached? That is not universally the case.
I will accept the Deputy's amendment.
I thank the Minister of State.
I move amendment No. 112:
In page 111, line 22, after "£500" to insert "and in addition the person shall be liable to be ordered to comply with this section".
I move amendment No. 112a:
In page 111, to delete lines 45 to 47, and in page 112, to delete lines 1 to 7 and substitute the following:
"194.–Sections 65 and 66 of the National Cultural Institutions Act, 1997, are hereby amended by the substitution of the following sections therefor:
‘65.–(1) Subject to the provisions of this section, the publisher of any material to which this section applies shall, within one month or such longer period as the authority having control of the National Library of Ireland may allow after its publication, deliver at his or her own expense, a copy of the material to that authority and the authority shall give a written receipt to the publisher for any and all such material delivered to them.
(2) The publisher of material to which this section applies that relates wholly or mainly to Ireland shall, if a written demand for any such material is made by the authority referred to in subsection (1) not later than 12 months after its publication, deliver a copy of the material to that authority within one month after receipt of the demand or, if the demand was made before its publication, within one month or such longer period as the authority may in any particular case allow after its publication.
(3) The Minister, following consultation with the Minister for Enterprise, Trade and Employment, may make such regulations as he or she considers appropriate in relation to the quality and format of material to which this section applies in cases where the copies of such material are not of uniform quality or can be published in different formats.
(4) Where a publisher fails to comply with this section, he or she shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 and to pay such sum not exceeding the value of the material as the court may decide which shall be paid to the trustees or authority to whom the material should have been delivered.
(5) In this section:
"material to which this section applies" means material that is of such class as may be specified in regulations made by the Minister, following consultation with the Minister for Enterprise, Trade and Employment, and in this definition, "material" includes any engraving, photograph, text of a play, cinematograph film, microfilm, video recording, sound recording, record, diskette, magnetic tape, compact disc, or other thing on or in which works or information or the representations thereof is written, recorded, stored or reproduced but does not include local records or local archives within the meaning, in each case, of section 65 of the Local Government Act, 1994, or books within the meaning of section 187 of the Copyright and Related Rights Act, 2000;
"publisher", for the purposes of this section, means a person who issues to the public, or makes available to the public by means of an electronic retrieval system, material to which this section applies;
"work", for the purposes of this section, has the meaning assigned to it by section 2 of the Copyright and Related Rights Act, 2000.
(6) This section shall apply only to material concerned substantially or primarily with Ireland. In cases of doubt, the certification of the Minister to the effect that material is concerned substantially or primarily with Ireland shall satisfy the requirements of this subsection.
(7) The Minister, following consultation with the Minister for Enterprise, Trade and Employment, may by order apply this section, with such modifications and adaptations as he or she considers necessary, to one or more of the institutions or bodies referred to in section 187 of the Copyright and Related Rights Act, 2000.
(8) Section 6 of the Dublin City University Act, 1989, and section 7 of the University of Limerick Act, 1989, are hereby repealed.'.".
This is a technical amendment. The intention of section 65 of the National Cultural Institutions Act, 1997, was to extend to the book deposit scheme to an extent which would allow the National Library of Ireland to seek delivery of certain materials other than traditional books. Section 65 depends on a linkage with the book deposit section of prevailing copyright legislation, currently section 56 of the Copyright Act, 1963. It is, therefore, necessary to amend section 65 to ensure it can continue to work in conjunction with the new book deposit arrangements which will replace section 56 of the 1963 Act under the new legislation.
The materials in question, as indicated in subsection (5) of the replacement section proposed by this section, would include such subjects as compact discs, microfilms, video recordings, cinematograph films and sound recordings. It will not have escaped Deputies' attention that the technology specific nature of the section is not consistent with the technology neutral approach of the Bill in general. This arises from the fact that the objectives of the National Cultural Institutions Act on this point are essentially technology specific.
I understand that section 65 has not yet been commenced but that its commencement in relation to cinematographic films and videos is being considered. Full commencement of the section, including such materials as compact discs, photographs and sound recordings, would appear improbable in the near future since it would be likely to prove controversial.
I suggest to the House that it would be prudent to enact this amendment to ensure that section 65 remains workable after the commencement of the new copyright legislation. The longer term future of this measure is likely to be determined by the Government's final decision on foot of the proposed interdepartmental examination of the book deposit scheme to which I have already referred.
Subsection (6) states, "This section shall apply only to material concerned substantially or primarily with Ireland. In cases of doubt, the certification of the Minister .". Is that the Minister for Arts, Heritage, Gaeltacht and the Islands?
It is the Minister for Arts, Heritage, Gaeltacht and the Islands.
Subsection (7) states, "The Mini ster, following consultation with the Minister for Enterprise, Trade and Employment .".
We are making amendments to the National Cultural Institutions Act which is that Minister's responsibility.
I move amendment No. 113:
In page 113, line 16, to delete "Honourable" and substitute "Honorable".
This is a technical amendment. The spelling of "Honorable" in the title of the Honorable Society of Kings Inns was raised by Deputy Rabbitte during the debate on Committee Stage. It was subsequently pointed out to me by a member of the Honorable Society of Kings Inns that the society uses the spelling "Honorable" in its title, although I suspect that has more to do with the way King Henry VIII spelt the word than it does with the spelling in American English. It appears the present text is incorrect and I propose to correct it by way of this amendment.
I thank the Minister of State for this important amendment.
It is very honourable of him.
I am somewhat taken aback that it required a meeting with a honourable member of the benches of Kings Inns before he was persuaded of it. I tried to persuade him on Committee Stage that the spelling was incorrect.
I should trust the Deputy more.
I move amendment No. 114:
In page 114, to delete lines 5 to 7.
This is a technical amendment. As the provisions on qualification were amended on Committee Stage, this section is no longer required.
I move amendment No. 115a:
In page 114, line 27, to delete "should" and substitute "would".
This is a technical amendment.
Amendments Nos. 116a and 119a are consequential on amendment No. 117a. Amendments Nos. 117 and 119b are related. Amendments Nos. 116a, 117, 117a, 119a, and 119b may be discussed together by agreement.
I move amendment No. 116a:
In page 115, line 13, to delete "A" and substitute "Subject to subsection (2), a”.
I propose acceptance of amendments Nos. 116a, 117a, 119a and 119b and consequently I will not be accepting amendment No. 117, which appears to represent an alternative approach to the same problem.
On Committee Stage members of the select committee pointed out there was an apparent overlap between what is now section 201, the exclusive making available right of performers in relation to recordings of their performances, and what is now section 204 which deals with the right to equitable remuneration of performers in relation to the exploitation of their sound recordings. Having reviewed the matter, I find myself in agreement and the purpose of my amendment is to disentangle the two sections and to ensure that no dual right is created for performers in respect of the exploitation of sound recordings.
Deputies will know that the approach adopted here is simpler than that adopted under copyright and, in particular, that the dreaded phrase, "equitable remuneration" appears. These differences arise for two reasons. First, elaborate special licensing arrangements are not required in connection with section 201 because it is not expected that these performers rights will be exercised collectively on an independent basis. In practice, it appears that where these rights are managed collectively, principally in the music and sound recording field, collection of payments will be done through agreements with existing copyright collecting agencies, rather than by independent collecting societies. In these circumstances, the presence of a section 38 type structure would only confuse the process of managing these rights.
Second, our room for manoeuvre is limited in this area by the presence of the EU rental and lending directive which confers on performers a right to equitable remuneration, in so many words, in the circumstances covered by section 204. Following the difficulties which arose from the earlier proposal to use this concept in the copyright field, I gave consideration to the question of whether alternative terminology should be adopted here but decided that the directive would preclude any such change.
The Minister has attempted to cover what we were trying to do in our amendment No. 117 so I will accept what he said.
I thank the Deputy.
I move amendment No. 117a:
In page 115, between lines 16 and 17, to insert the following:
"(2) Where a copy of a sound recording is–
(a) played in public, or
(b) included in a broadcast or cable programme service,
the right conferred by this section shall be deemed to be satisfied by the payment of equitable remuneration as specified in section 204.”.
I move amendment No. 118:
In page 115, line 37, after "recording" to insert "without the payment of remuneration to the rightsowner"
This amendment is required to cure an oversight and bring the performer's 'making available' right provided for in section 201 into harmony with the equivalent provision on copyright contained in section 39. If this were not done, copyright rightsholders would enjoy a qualified right where performers would benefit from an unqualified exclusive right. An imbalance of this nature between copyright and performers' right should not be allowed to exist and accordingly I propose this amendment.
At this time of the night it is difficult to remember what was contained in the earlier section. Is this something that was brought to the Minister's attention in that people wanted it to be amended in a way that was more beneficial, and has the Minister gone on a different line? He is putting in the words "without the payment of remuneration to the rightsowner". Subsection (4) will now read: "A reference in Parts III and IV to the making available . shall include lending copies of the recording without the payment of remuneration”. Does that read correctly? Is there a word missing?
I do not think so.
The qualifying sentence is in section 201(4), is that right? "A reference in Parts III and IV to the making available to the public of copies of a recording of a qualifying performance shall include . lending copies of the recording with the payment of a remuneration to the rightsholder”. They do not have to pay anything when they are making available to the public copies of a recording of a qualifying performance?
It is to bring performers' rights in line with copyright.
Did the Minister have any discussion with any side on this aspect?
No. We discovered, in reviewing the legislation, that we need to bring different elements of the legislation in line with each other, copyright and performers in this case. It is just to have consistency in the legislation.
I move amendment No. 119:
In page 116, between lines 21 and 22, to insert the following:
"(10) When the owner of a recording of a performance which has been lawfully made available to the public authorises a licensing body as defined in section 257 to act on its behalf, then that licensing body shall register in accordance with section 272 and shall set up a licensing scheme in accordance with section 257.”.
I assume this amendment has been dealt with already in some of the sections we have discussed. If the Minister would clarify that we would be happy to examine it again. The amendment has to do with licensing bodies and so on.
An amendment on these lines could make effective collective management of performers' rights more difficult since in practice performers' royalties are likely to be collected through special arrangements with copyright collecting societies already in existence. Also, the compulsory registration aspect of the amendment is effectively dealt with by the Government's amendment No. 135a and I therefore ask the Deputy to withdraw his amendment.
I move amendment No. 119a:
In page 116, to delete lines 22 to 32.
I move amendment No. 119b:
In page 118, to delete lines 11 to 20, and substitute the following:
"recording of the whole or any substantial part of a qualifying performance which has been made available to the public for commercial purposes is–
(a) played in public, or
(b) included in a broadcast or cable programme service.".
I move amendment No. 120:
In page 124, lines 5 and 6, to delete "reasonably justified by the non-commercial purpose to be achieved" and substitute "which will not unreasonably prejudice the interests of the rightsowner".
I move amendment No. 121:
In page 124, line 15, to delete "deliberately included" and substitute "included in a manner where the interests of the rightsowner are unreasonably prejudiced".
Amendment No. 122 is in the name of the Minister. Amendment No. 139 is cognate so the proposal is to discuss Nos. 122 and 139 together, by agreement.
I move amendment No. 122:
In page 124, line 19, after "by" to insert "or on behalf of".
On Committee Stage I accepted a similar amendment to section 52 in the copyright part of the Bill proposed by Deputy Rabbitte. At that time I gave an undertaking to ensure that any amendments accepted in the copyright section would be carried over to the other parts of the Bill where appropriate. These amendments are being proposed for consistency.
We were all concerned about this issue because the copying had to be done by a person and the Minister is now including "by a person or on behalf of", which removes the anomaly whereby one person would have to do all the copying. They can now assign the job to somebody else, so that is very welcome.
I move amendment No. 123:
In page 125, to delete lines 12 to 15, and substitute the following:
222.–(1) Subject to subsection (2), educational establishments and establishments to which members of the public have access shall be exempt from the payment of remuneration under section 201(1)(g) and shall not infringe the rights conferred by this Part by the lending of copies of a recording of a performance.
(2) The Minister shall prescribe the educational establishments and the establishments to which members of the public have access for the purposes of subsection (1).”.
I move amendment No. 123a:
In page 125, line 33, after "public" to insert "and".
Amendment No. 124 is in the name of the Minister. Amendment No. 125 is related so the proposal is to discuss Nos. 124 and 125 together, by agreement.
I move amendment No. 124:
In page 126, line 24, to delete "or" and substitute "unless the person satisfies the librarian or archivist that the previous copy has been lost, stolen, discarded or destroyed or a reasonable period of time has elapsed, and that person shall not be furnished".
On Committee Stage Deputies Owen, Stanton and Rabbitte proposed similar amendments to sections 61 and 62 in the copyright part of the Bill. To show consistency, I now propose these amendments to the similar provisions in sections 225 and 226 on performers' rights.
I move amendment No. 125:
In page 126, lines 28 to 30, to delete "other than to a person who satisfies the librarian or archivist that his or her requirement is not related to any similar requirement of any other person" and substitute "to more than 3 persons whose requirements are related to any similar requirement of any other person".
I move amendment No. 126:
In page 127, between lines 14 and 15, to insert the following:
229.–(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make a copy of a recording of a performance in the permanent collection of the library or archive–
(a) for the purposes of obtaining insurance cover for the copy of a performance concerned;
(b) for purposes of security;
(c) for the purposes of compiling or preparing an archival record of the performance; or
(d) for exhibition in the library or archive, without infringing any rights conferred by this Part.
(2) This section shall apply to copying conducted for the curatorial purposes specified in subsection (1), and to an extent reasonably justified by the non-commercial purpose to be achieved.”.
Did we discuss this amendment?
It was discussed with No. 54.
That was so long ago. Was that today at all? Perhaps the Minister would remind us why this amendment is being made. I just cannot remember.
This is like the film "They Shoot Horses, Don't They?".
If we discussed it we probably agreed it.
I will discuss the matter with the Minister for Arts, Heritage, Gaeltacht and the Islands. This amendment came from her Department.
I move amendment No. 127:
In page 127, between lines 38 and 39, to insert the following:
231.–Where a copy which would otherwise be an illicit recording is made under section 225, 227, 228, 229 or 230 but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.”.
This is a purely technical amendment. On Committee Stage a Government amendment was accepted whereby a subsequent use clause was inserted after the exceptions for libraries, archives and museums in the copyright part of the Bill to ensure that copies of works made and supplied under the terms of these exceptions could not be used for any other purposes. This amendment proposes a similar amendment to the performers' part of the Bill.
I move amendment No. 128:
In page 131, line 20, to delete "discrete" and substitute "special".
I would remind the Minister that we decided to stay with the word "discrete". I took the opportunity to mention it to an eminent barrister and he was quite impressed by the use of the word "discrete". He knew what it meant.
I move amendment No. 129:
In page 132, line 4, to delete "6" and substitute "3".
I move amendment No. 130:
In page 132, line 9, to delete "6" and substitute "3".
I move amendment No. 131:
In page 132, between lines 20 and 21, to insert the following:
"244.–(1) The making for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe any right conferred by this Part.
(2) Subject to subsection (3), the making by an establishment for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe any right conferred by this Part.
(3) The Minister may specify by order establishments for the purposes of this section.".
I move amendment No. 131a:
In page 134, line 47, after "premises" to insert "or place".
I move amendment No. 132:
In page 136, between lines 24 and 25, to insert the following:
"(12) Where there has been an exercise of the right to seize and detain, conferred by subsection (1), the court may, on the application of a person aggrieved by it, award damages against a person who exercises that right as it considers just, on being satisfied that–
(a) no infringement of a right conferred by this Part has been established, and
(b) the person had no reasonable grounds for such seizure.”.
I move amendment No. 133:
In page 138, between lines 8 and 9, to insert the following:
"252.–A person who, for financial gain, makes a claim to enjoy a right under this Part or Part IV which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.”.
I move amendment No. 134:
In page 138, line 46, to delete "requested" and substitute "requested,".
I move amendment No. 134a:
In page 146, line 43, to delete "Controller" and substitute "operator".
I move amendment No. 135a:
In page 150, between lines 3 and 4, to insert the following:
"278.–(1) Any body operating as a licensing body within the meaning specified in section 257 shall be obliged to register in accordance with the provisions of this Chapter, and to remain registered for so long as it continues to operate in this capacity.
(2) Any body to which the provisions of subsection (1) applies which–
(a) fails within 6 months of the commencement of this Chapter to register under the terms of this Chapter, (b) fails within 2 months of its establishment in the case of a body established after the commencement of this Chapter to register under the terms of this Chapter, or (c) continues to operate as such a body having been removed from the Register for any reason shall be guilty of an offence.
(3) A person guilty of an offence under subsection (2) shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.".
Amendment No. 135c is related to amendment No. 135b and they may be taken together by agreement.
I move amendment No. 135b:
In page 150, lines 18 and 19, after "country," to insert "territory, state or area,".
This is a technical amendment to ensure consistency.
I move amendment No. 135c:
In page 150, line 21, after "country" where it secondly occurs, to insert ", territory, state or area,".
I move amendment No. 135d:
In page 151, line 31, to delete "includes" and substitute "include".
This is a technical amendment to delete an incorrect plural.
I move amendment No. 135e:
In page 152, lines 29 and 30, to delete "would be entitled".
Amendment No. 135g is consequential on amendment No. 135f and they may be taken together by agreement.
I move amendment No. 135f:
In page 156, to delete lines 3 to 9.
On Committee Stage section 124 of the copyright part was amended in this way. I propose this amendment to ensure consistency in the provisions of performers' rights.
I am concerned there are no powers of cross-examination in respect of this section and I am also concerned about hearsay evidence. This is the same argument I put to the Minister of State earlier. I am not overly happy about this provision but we reluctantly accepted a similar one earlier.
I move amendment No. 135g:
In page 156, lines 10 and 11 to delete "Where an appropriate court makes an order under subsection (3), it” and substitute “Where, in an action for infringement of a performer's property rights, the defendant does not admit that the plaintiff is owner of the performer's property rights, the court”.
I move amendment No. 135h:
In page 158, line 33, to delete "217,”.
Section 301 already provides that a recording of a performance for the purpose of reporting current events is not necessary. Therefore, the cross reference to section 217, which provides for the same exception, is redundant.
I move amendment No. 135i:
In page 158, line 37, to delete "and qualifications".
As there are no qualifications referred to in section 303, this section is redundant.
I move amendment No. 136:
In page 159, line 8, to delete "the commission of an offence" and substitute "any contravention of civil or criminal law".
Amendment No. 138 is related to amendment No. 137 and they may be taken together by agreement.
I move amendment No. 137:
In page 163, line 1, to delete "investment".
I would be interested to hear what the Minister of State has to say on these amendments.
I mentioned on Committee Stage that the Deputies' motivation in putting forward these amendments seems to be to allow the Minister to specify what amounted to substantial in terms of the financial investment in a database for the purpose of the database right. I sympathise with this intention but, having carefully considered the matter, I cannot accept these amendments.
The concept of substantial investment is drawn from Article 7 of the EU database directive which defines the object of protection of the database right. While the directive does not specifically prohibit the sort of provision suggested by the Deputies, there is a practical problem in that question of what represents a substantial investment is a relative one as much as an absolute one, in other words, what would be an insubstantial investment for a large database, such as a national telephone directory, might be quite substantial when applied to a smaller database. For this reason, there would be a significant risk that setting a specific financial minimum might deprive some databases of their entitlements to protection under the directive. In light of those considerations, I hope the Deputies will agree that it would be better to leave the question of what is substantial to the facts of the individual cases. I hope they will agree to withdraw these amendments.
Words such as "substantial", "reasonable", "proportion" and "numbers" are difficult to define. I might not consider substantial what the Minister of State might consider sub stantial. I am disappointed he is unwilling to take on board the concept of specifying what is substantial. I will not go to the wall on this, but I hope it is not one of those areas where the controller will end up tearing his hair trying to decide what is substantial. I will not press the amendment.
I move amendment No. 138a:
In page 163, line 43, to delete "Subject to subsections (2), (3) and (4)” and substitute “Subject to the provisions of this section”.
This is a technical amendment to ensure that all provisions of section 313 will apply when determining the author of a database.
I move amendment No. 138b:
In page 166, lines 44 and 45, to delete "reasonably justified by the non-commercial purpose to be achieved by the extraction" and substitute "which will not unreasonably prejudice the interests of the rightsowner".
I move amendment No. 139:
In page 167, line 7, after "by" to insert "or on behalf of".
I move amendment No. a139a:
In page 174, line 1, to delete "While" and substitute "Where".
I move amendment No. 139a:
In page 179, between lines 8 and 9, to insert the following:
"352.–(1) Any body operating as a licensing body within the meaning specified in section 331 shall be obliged to register in accordance with the provisions of this Chapter, and to remain registered for so long as it continues to operate in this capacity.
(2) Any body to which the provisions of subsection (1) applies which—
(a) fails within 6 months of the commencement of this Chapter to register under the terms of this Chapter,
(b) fails within 2 months of its establishment in the case of a body established after the commencement of this Chapter to register under the terms of this Chapter, or
(c) continues to operate as such a body having been removed from the Register for any reason,
shall be guilty of an offence.
(3) A person guilty of an offence under subsection (2) shall be liable—
(a) on summary conviction, to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both, or
(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.".
I move amendment No. 139b:
In page 179, line 29, to delete "an appeal from the Controller" and substitute "appeals from decisions of the Controller".
On reconsidering the wording of this section, I consider this amendment will clarify its meaning.
As this amendment poses a charge on the Exchequer, it is necessary to recommit it.
I move amendment No. 140:
In page 179, between lines 41 and 42, to insert the following:
"355.–(1) In any proceedings before him or her under this Act, the Controller may, where he or she thinks fit, and shall, on the request of all the parties to the proceedings, appoint an assessor who is specially qualified in regard to all or any of the questions arising in the course of the proceedings to aid the Controller in his or her consideration of those questions.
(2) Subject to subsection (3), the Minister shall approve, with the consent of the Minister for Finance, the amount of remunderaiton (if any) to be paid by the Controller to an assessor appointed by him or her under this section.
(3) The amount of remuneration referred to under subsection (2) shall be paid out of moneys provided by the Oireachtas, to such an extent as may be santioned by the Minister for Finance.”.
During Committee Stage debate there was much discussion concerning the role and functions of the controller.
As it is now 10.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day, "That the amendments set down by the Minister for Enterprise, Trade and Employment and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
It is normal at this point to make a comment. This is a matter of great relief and great excitement. I believe the fireworks and the champagne corks are popping as we finish given that the Copyright and Related Rights Bill will become the Copyright and Related Rights Act, 2000, as soon as the President signs it.
I commend the Minister of State, the Department and the small staff we now know intimately for the work they have done. I commend also the many groups who took such an interest in this legislation and assisted us on the Opposition benches in making this a much better Bill now than when it started its life many months ago. I express my appreciation and thanks to my colleague, Deputy Stanton, who did an enormous amount of work on this Bill and with whom I enjoyed great relations as we worked our way through it. We had no fights about it. All of us who have participated in this legislation have done a good day's work. It has been interesting, stimulating and challenging despite the lack of attention. I hope those for whom there will be benefits in this legislation appreciate the detailed work that has taken place. I thank all for their patience.
I thank the Deputies present and my officials for their contribution to producing good legislation. I assure Deputies they will certainly feature on "Oireachtas Report" tonight.