Is there a composite list somewhere which has eluded me? I have seven lists of amendments.
Copyright and Related Rights Bill, 1999 [ Seanad ] : Report Stage.
There is a main list and a composite list. Copies have been circulated but we can obtain additional copies.
I move amendment No. 1:
In page 23, line 35, after "Copyright" to insert ", Database, Performance".
This amendment was discussed on Committee Stage and attempts to follow the practice common in other jurisdictions whereby this type of legislation is divided into different Acts. Three major Bills, namely copyright, database and performance rights legislation, are incorporated in this Bill. I stated on Committee Stage that the Bill's short title – Copyright and Related Rights Bill – does not help people to understand that the Bill covers three major issues. We are proposing that the Minister would change the title to read "Copyright, Database, Performance and Related Rights Bill" to encompass its major component parts. That would inform the public that legislation exists which covers databases and performers in addition to copyright.
I appreciate that the term "related rights" encompasses other issues such as moral and integrity rights but I contend that they are relatively minor. It does the Bill a disservice not to include the words "database" and "performance" in the short title. I am aware that these words are included in the long title but the Bill will be known as the Copyright and Related Rights Bill and we believe it would be preferable for it to be known as the Copyright, Database, Performance and Related Rights Act when it is enacted.
We discussed this matter on Committee Stage and I have since double checked the viability of the amendment. My position has not changed. The term "related rights" in the current title is sufficiently descriptive of the Bill's contents which deal with copyright, performance and database rights. The term "related rights" also clearly stresses the relationship between the provisions in regard to performance and database rights with the relevant section in copyright. The Bill's long title makes specific reference to databases, performance and performers. The office of the Attorney General has advised that the proposed amendment is unnecessary. The Deputy's concerns are more than adequately dealt with in the Bill as it is currently drafted.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 24, line 38, to delete "Éireann" and substitute "Éireann,".
This is purely a technical amendment.
Amendment agreed to.
Amendments Nos. 3 and 4 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 3:
In page 25, between lines 17 and 18, to insert the following:
"(i) a service which is only incidental to a business of keeping or letting premises where persons reside or sleep and is operated as part of the amenities provided exclusively or mainly for residents or inmates therein;".
This amendment was also discussed previously and the Minister made some minor concessions on the issue. However, I am disappointed by his overall timidity. The extent of the ministerial change in section 94(2) is very mild. Section 94(2) states:
Subsection (1) does not apply in respect of any part of the premises to which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed.
The Minister has tabled amendments Nos. 62 and 128 to this section. Amendment No. 62 will only serve to change "discrete" to "special". I am not sure what that means. What is the difference between a special charge and a discrete charge? We discussed this issue at some length on Committee Stage and it is disappointing that it has not been tidied up.
The issue of the free playing of sound recordings, broadcasts and similar facilities, such as radios and televisions, in hotel bedrooms, which were included in the 1963 Act, was omitted from the published version of the Bill. The omission raised considerable concern on Committee Stage and it was in that context that the Deputies tabled their amendments. Following representations from members of the Irish Hotels Federation, the Vintners Federation of Ireland and the Irish Night Clubs Industry Association and following the constructive comments made by Deputies on Committee Stage, I changed the legislation and restored the exception outlined in the 1963 Act whereby this type of playing is permissible without the payment of royalties. I introduced an amendment on Committee Stage which is now embodied in the text of section 94. Amendments Nos. 3 and 4 are no longer necessary and I would ask Deputy Rabbitte to withdraw his amendment.
The exception provided for in section 94 will have to be kept under review in the context of the EU Directive on copyright and the information society. I have responded to the concerns expressed on Committee Stage with a new section 94 and now propose an additional change in amendment No. 62 which seeks to substitute "special" for "discrete".
What does "special" mean?
We can debate that when we reach the amendment which is not grouped with amendments Nos. 3 and 4. Deputy Rabbitte expressed particular concerns about the word "discrete" and I suggest that "special" would be more appropriate.
Would there be anything wrong with incorporating these amendments in the Bill? It might well be a "belt and braces" approach but would that not be preferable to ensure clarity in the legislation? The vintners and the hoteliers made a very serious case in regard to their concern that the original format of the legislation would cause chaos. I have examined section 94 and the Minister's amendment No. 62 which proposes changing "discrete" to "special".
Section 94(2) seems to be causing some confusion and I would be concerned that some inspectors or others would want to charge a fee for royalties in parts of a hotel or premises which the section would appear to exempt. However, in the absence of amendments Nos. 3 and 4, an argument could be made about who has the right to charge and who is obliged to pay. If the amendments will not damage the legislation but will merely clarify an issue which is quite complicated, the Minister should bite the bullet and accept one or other of our amendments, the wording of which is identical.
The question of playing recorded music in various parts of hotels will become a source of argument. The Minister should accept this amendment, despite his own attempt to close the loophole in section 94.
I have accepted many amendments and introduced new sections in the Bill. I am happy to accept amendments which help the legislation. However, in this case the organisations mentioned are happy with the Bill. Section 94(1)(a) deals with this issue which was raised by many Deputies and Senators. I am satisfied with section 94 and I have checked the matter with the Office of the Attorney General. I will be happy to accept amendments which help to clarify matters but in this case, having consulted all the interested organisations, I am satisfied that the balance is now correct.
I thank the Minister for his reply.
The Minister's response is not adequate. It deals with the hotel bedrooms issue which was a major one for hoteliers. However, he has not adequately explained the change to section 94(2) which will be difficult to define in practice. He avoids answering the question about the distinction between discrete and special.
The word special is used in the 1963 copyright legislation. I know Deputy Rabbitte has concerns about the word "discrete".
That will not help a hotel proprietor who is trying to operate the law. I do not know the difference between a discrete charge and a special charge. Apart from telling me the word "special" is in the 1963 Act, I do not understand what the Minister is saying. I do not see how these amendments would cut across the thrust of what the Minister agreed on Committee Stage. They would give desirable clarity to hoteliers.
The question of discrete and special charges will be dealt with when we discuss amendment No. 62. The only argument to support the change made by section 94 is the reference to the 1963 legislation. My main concern is to deal with people's worries about the term "dis crete". However, we all know what the import of this language will be. The overall thrust of the amendment is to accommodate the position with regard to bedrooms and that has been done.
I remind the House that on Report Stage only the mover of an amendment may speak for a third time.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 26, line 32, after "applies," to insert "or any other third-level institution".
This amendment seeks to clarify the definition of third level institutions. The Bill defines a university as one "to which the Universities Act, 1997, applies" while any other educational establishment must be prescribed by the Minister under section 54. This problem would be dealt with by inserting the words "or any other third level institution". Why must the Minister prescribe educational establishments under section 54? The definition of a third level establishment is more complicated than it used to be. Why must different rules apply to educational institutions? The impact of this definition on various sections of the Bill will be to make special arrangements for educational establishments. It is invidious to distinguish between them. A catch-all definition such as this would be more appropriate.
During the debate on Committee Stage I accepted an amendment from Opposition Deputies on the definition of an educational establishment, which is now incorporated in line 32 on page 26. Deputy Rabbitte now proposes to extend that portion of the definition to include any other third level institution. While appreciating why Deputy Rabbitte has raised this point, I draw his attention to the Committee Stage debate when I gave a commitment to consider the inclusion of technical colleges and other third level institutions not covered by the Universities Act, 1997, when the regulations are being drafted. Accordingly, this amendment is not necessary.
Again I give a commitment to Deputy Rabbitte that the question of including technical colleges and other third level institutions will be seriously considered by me when the regulations are being made.
I recall the discussion on Committee Stage and I have mixed views on the matter. There is now a great variety of third level institutions. What criteria will the Minister use in prescribing third level educational establishments and on whose judgment will the designation be based? The breadth of Deputy Rabbitte's amendment might cause a problem. I could set up a college to train former judges, for example, and call it a third level institution but it might merely be a school for teaching people how to do inter views. What criteria will the Minister use in designating an establishment as a third level institution?
The Minister of the day might consult the Minister for Education and Science on the criteria to be used.
I am not clear why the Minister resists this amendment. It does not propose that the legislation should apply to all educational institutions. Its application would be limited to third level institutions which imposes a requirement in terms of educational and other standards. Why must we await the Minister's prescription of the institutions to which the legislation will apply? He said in his formal reply that he will consider technical colleges for inclusion when he is making the prescription. That is different from saying they will definitely be included. Short of receiving the assurance that they will definitely be included, I have to press my amendment.
I can see Deputy's Rabbitte's point. It is important that such third level institutions would have guarantees that they would be included here. The thrust of Deputy Rabbitte's amendment is to give them that guarantee. The Minister said that the Department of Education and Science would be included and involved, which would be vitally important. It is possibly too late to make changes to it now but if there was some form of dispute between a Department and an institution as to whether it was a third level institution, there could be grey areas involved. Deputy Rabbitte has opened up a very important question. There could be grey areas involved there.
The Minister has included "any other educational establishments prescribed by the Minister". It is important that everything possible be done to ensure that all the third level institutions Deputy Rabbitte has in mind are included in this. There may be third level institutions about which we do not even know. There should be some way by which these establishments could apply to be recognised and some structure set in place for this to happen, and it could happen fairly quickly. Perhaps there is some way this could be done and the Minister could give a guarantee to that effect.
The point has been well made by the Deputies and I give the House the assurance that Regional Technical Colleges will be included.
In that event, I will not press the amendment.
It was worthwhile getting that information.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 26, between lines 39 and 40, to insert the following:
"‘electronic format', where the written material is made available in a digital format, means material that can be read by a computer;".
We had a debate on this on Committee Stage and the definition of "electronic format" is not given in the Bill, as far as I know. We propose to define "electronic format" as "where the written material is made available in a digital format, means material that can be read by a computer;". It is a fairly straightforward definition. It is important that it is made clear in the Bill.
Again, I said on Committee Stage that the difficulty with this definition is that it uses technology specific terms which, although current, could cause difficulties in defining "electronic format" in light of unforseeable technological developments. I share the Deputy's concern on behalf of disabled people which is the reason behind the proposed amendment, as I understand it, and his concern that material should be made readily available to people with a physical handicap.
To that end, I point out that section 193(11), which deals with the deposit of electronic books in libraries, together with the provisions on modified works in section 101 and section 245, will ensure that access is greatly enhanced for people with disabilities. Again, the Attorney General's office was consulted about the proposed amendment but felt there was no need to define the term "electronic format" for the reasons I have outlined. In the context of making changes with regard to disabled people later on, I ask the Deputy to withdraw this amendment as his concerns will be met in the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 27, between lines 6 and 7, to insert the following:
"‘the Internet' means any network of computers and the technology which links them to which members of the public have access either with or without charge;".
The purpose behind this amendment is not dissimilar to the one advanced by Deputy Stanton with amendment No. 6, except that this is the generic term and it seeks to give some definition of the Internet. It is extraordinary that, although the Internet is referred to in the legislation, nowhere in the definition section is there an attempt at defining what that means. I do not, for the life of me, understand the Minister's arguments and why we should seek to avoid it.
I am not arguing that my definition or rather that of my colleague, Senator Brendan Ryan, who initiated it, is perfect or the only one but it does make a reasonable attempt at defining the Inter net as "any network of computers and the technology which links them to which members of the public have access either with or without charge". That does not seem to be prejudicial in any way. If we are introducing a Bill to deal with copyright in the year 2000, to avoid defining the Internet seems to be an inexplicable omission. I ask the Minister of State, even at this late stage, to accept this.
The Minister of State is remiss in not coming back to us on Report Stage with a definition. On Committee Stage, concerning this amendment, which was amendment No. 9 to section 2 in the name of Deputy Rabbitte, the Minister gave a commitment to consider the comments made about the definition of the Internet. Modern legislation which will be enacted in the year 2000 should not ignore terms such as "Internet" and "Web", while even dictionaries are changing all the time. All sorts of what we would have called "makey-up" words when we were children are now included in dictionaries because they are in common parlance. The Minister of State will find there will be many legal arguments caused by the lack of some element of definition of the Internet.
Perhaps the Minister of State thinks this wording is not the right one but he gave a commitment to look at this for Report Stage and I am disappointed he has not included it. I accept that the Bill has to be careful of technology which can very quickly become out of date but if a term is included, the legislation can be amended again. There are ways. The Minister has already told us that in about a year or a year and a half, to our great pleasure, somebody will be back in here debating yet more copyright legislation. Perhaps Deputy Stanton will be the Minister in charge, perhaps it will be Deputy Rabbitte or myself but one of the four people in this House may be the Minister introducing new legislation. We can manage to put in a new definition if technology has raced ahead of us in that short space of time. The Minister would be failing if he does not accept this amendment.
The Internet is a very new and all-embracing term and I can see the Minister of State's difficulty in trying to define it because it is vague, nebulous and so forth, which he said on Committee Stage. However, that probably is the reason some effort should be made to define it and to put some kind of parameter on it so it will not be so wide as to cause major confusion later on in legal circles when people start debating what is the Internet. It is the Minister's responsibility to try to put some manners on this and to put some box around it so that when people go to court and discuss it, they will have some definition on which to hang their hats. The Minister of State gave a commitment to come back to us and I await his reply with bated breath.
First, Deputy Rabbitte's definition is probably as good as one could get. However, I gave a commitment that I would reconsider inserting a definition of the Internet into the Bill and at that time I mentioned the AG's advice. I sought a second opinion from that office and they still feel that the definition would be inappropriate and I will explain why. The advice is unambiguous. It states that the word "Internet" is in common usage and is reasonably well understood. The danger in attempting to define the word is that one may end up restricting its meaning. None of us wants to do that.
I believe that the AG's advice is correct and that to restrict the meaning of the Internet would run the risk of opening a loophole whereby infringement of copyright works could occur and, moreover, if such a loophole did arise, authors would understandably be reluctant to place their works on the Internet. It would be counterproductive from the point of view of both authors and users to include a definition of the Internet as suggested. I gave a commitment that I would revisit this and I have done that. Members will agree that nobody is trying to further complicate matters in regard to the Internet because there are enough complications and litigation in that area. I outlined my advice and I ask the Deputy to accept it in good faith. Clearly, as he correctly stated, Ministers will have to come back to the House in the future to deal with this because there is an ongoing debate at EU level. I was involved in an internal market debate at a recent Council of Ministers meeting. Major and rapid development is taking place in this area. However, I have shared my advice with the Deputy and from the point of view of authors and, particularly, rights holders, it is important that more complications are not created.
The Minister of State's argument is not persuasive. If, as he said, he undertook to get advice on whether the Internet ought to be defined in the legislation, the advice was rather skimpy. The totality of that advice seems to be that such a definition might restrict the development of what we know as the Internet and create a loophole that might provide problems in the future. That could be said about a great many things in the information age. It is not likely to be another 37 years before we renovate this law. It is more probable that the explanation is that the Minister of State's advisers say that it would be difficult to define the "Internet" and for that reason have avoided it altogether. It has already been pointed out that it is likely that the legislation will have to be revamped in a short period and this was established quite graphically in terms of the debate on the droit de suite issue. Why not, therefore, include a definition of the “Internet” given its centrality in terms of communication techniques, e-commerce and so on? If in two or three years' time it is out of date we can provide for that. I am puzzled as to the reasons for avoiding this issue and I am not persuaded those outlined are adequate.
The legislation is not in any way weakened by the absence of a definition of the "Internet". The Attorney General feels it would be inappropriate. I have no problem including a definition but I must make a call based on the legal advice available to me and the fact that there are concerns that a loophole might arise. I share the Deputy's desire for clarity but I am assured that the legislation is in no way diminished or weakened by the absence of such a definition. I accept that circumstances will change in the years ahead and, undoubtedly, amendments will be needed. There may be a need to define not just the Internet but other aspects of the high technology age in which we live and I and my successors will be open to change in this area. That is my advice and my main concern is that a loophole could arise which would create uncertainty about the position of rights holders, in particular, and authors.
Amendment, by leave, withdrawn.
Amendments Nos. a7a, 16a, 97a, 97c, 97d, 97e, 97f are consequential on amendment No. 16b. Amendments Nos. 1 to 3 to amendment No. 16b and amendment No. 21 are related. Is that agreed?
On a point of order, are amendments Nos. 1 to 3 to amendment No. 16b on the amendment list dated 22 June or 31 May?
They are on the list dated 22 June.
Our amendment is also on that list.
I move amendment No. a7a:
In page 27, line 11, after "section” to insert “38,”.
We have come to the one of the issues which was central to our deliberations on Committee Stage. I thank the Members opposite and my three officials, who have been working day and night trying to achieve the right balance on this, for their co-operation and patience.
I have a lengthy response, a Leas-Cheann Comhairle, and I request the indulgence of the House to go through it painstakingly. We have had a lengthy discussion on this issue and changes have been made, to which Deputy Rabbitte referred on the Order of Business. I accept Members' concerns following the many amendments which were made in recent days. That was a result of many parties having conflicting positions and I kept Members informed to the best of my ability.
In the interests of clarity, I will later move amendments Nos. 16a, and 16b. I will also move amendments Nos. 97a, 97c, 97d, 97e and 97f, which are consequential on the changes proposed in amendments Nos. 16a and 16b. I do not accept amendment No. 21 which represents an alternative approach to solving the same problem, to which I hope Deputy Rabbitte will agree, nor am I disposed to accepting amendments Nos. 1 to 3 to amendment No. 16b for reasons which I will outline.
These amendments, especially amendment Nos. 16a and 16b, represent the Government's solution to what was without doubt the most serious technical problem to emerge on Committee Stage. They concern the need to replace the section 37(4), which was introduced by Committee Stage amendment No. 21, with a measure which would allow owners of copyright and sound recording and their representatives to receive fair payment for the playing of such recordings in public and their inclusion in broadcast and cable programme services while at the same time guaranteeing fair treatment to the commercial users of these recordings. I will not repeat the extensive discussions on this issue both before the Select Committee on Enterprise and Small Business and subsequently. However, given the importance of the matter and its complexity, it is necessary to introduce these amendments in detail.
Members will recall the difficulty that arose as a result of an attempt to qualify the exclusive right of owners of copyright and sound recording to control public playing of such recordings and their inclusion in broadcast and cable programme services by making it possible for users to satisfy that right through the payment of equitable remuneration. It subsequently emerged that this attempt was based on a mistaken understanding of the legal meaning of the term "equitable remuneration", which, according to the Supreme Court, means a payment which is not only subsequent to the supply of the service to which it refers, but also agreed after the event. I outlined much of the legal background in the briefings which I circulated to Members.
I understand the wish of users to secure fairness of treatment in their dealings with owners of the copyright and sound recording and their representatives in the context of this legislation. However, reliance on the term "equitable remuneration" exposes sound recording rights holders to an unacceptable level of uncertainty as to their entitlement to payment, their ability to collect reasonable payment for the public playing of sound recordings and for their inclusion in broadcasts and cable programme services. A different approach – one which would be fair to both owners of the copyright in sound recording and users of sound recordings – was clearly needed. My Department, in consultation with the Office of the Attorney General and representatives of interested parties, has put a great deal of work into devising this approach which is reflected in amendments Nos. 16a and 16b.
In this connection, I want to thank the representatives of the owners of copyright in sound recording and of commercial users of sound recordings for their very positive input into this process. The Government is now convinced that it has devised an effective measure which will enable owners of copyright in sound recording to obtain the payments properly due to them in relation to these particular uses of their property while allowing due weight to the public interest in allowing sound recordings to be used in public performances, broadcasts and cable programme services without undue restriction. The approach taken is that of introducing a system of licence of right, which will in effect allow the relevant users of sound recordings to use them subject to their willingness to agree to pay, and then to continue to pay, fair payment to the copyright owners or their representatives in respect of this use.
This will be more meaningful if I explain the proposal in a little detail. Amendment No. 16a undoes the effect of Committee Stage amendment No. 21 which related to equitable remuneration.
On a point of order, while I do not wish to interrupt the Minister, this is an entirely new and complex amendment that we have seen for the first time. To introduce it on Report Stage is entirely against the normal practice and, therefore, it will be necessary to re-enter it for a discussion on Committee Stage. Otherwise it will not be possible to deal with it effectively. There is a whole group of amendments which are phenomenally complex.
It should be recommitted and we can have a short Committee Stage debate.
I propose that.
I am sorry for the interruption.
No, that is fine.
Is that agreed? It is agreed that it will be re-entered on Committee Stage.
Bill recommitted in respect of amendment No.a7a and related amendments.
I was trying to work out how to get over your ruling, a Leas-Cheann Comhairle, on only being allowed to speak once.
It makes no difference to the Bill itself, but as it is a Committee Stage debate there will be no two minute limit and no limit on the number of times a Member may speak.
I think it is an excellent suggestion and I thank the Deputy for making it. The new section 38(1), introduced by amendment No. 16b, creates a general licence as of right in favour of persons who propose to play a sound recording in public, or to include such a recording in a broadcast or cable programme service, provided that such a person agrees to make payment to a licensing body in respect of such actions, and subject to compliance with the requirements of the new section in general. The formula of “agrees to make payments” is used in section 38(1) so as to tie in with subsection (2)(c), which requires the payments in question to be made at intervals of not less than three months in arrears. It is logical in this context that the right should be triggered by an agreement to make payment rather than actual payment. However, the latter subsection makes it clear that continued enjoyment of the licence of right will depend on actual payments being made.
The new section 38(2) establishes the principal conditions under which the right to play and to include sound recordings may be enjoyed and may continue to be enjoyed. Subsection (2)(a) imposes a requirement that a person intending to exercise the right to play or include, as provided for in subsection (1), must give notice to each licensing body that might have an interest in receiving payments in respect of such use of sound recordings. In practice, this will be PPI Limited in respect of most sound recordings.
The formulation referring to "each licensing body" was used to meet a concern of user interests that any regime of licence of right should include, not only collecting societies, such as PPI Limited, but any other body or individual choosing to collect public performance revenues themselves without the intervention of a collecting society. Examples would be an individual collecting on their own behalf or the private record production company of a prominent artist.
Examples of both situations occur, but are rare. The "each licensing body" formulation, along with the definition of "licensing body" for the purposes of this section contained in subsection (14), will allow users to give notice of their intention to exercise the subsection (1) right to any such entity.
The inclusion of human individuals within the definition of "licensing body" for the purposes of this section required the change to be made by amendment No. 97c, which will permit the Minister to exclude inappropriate requirements to submit information on applicants for registration as a licensing body, such as memoranda and articles of association or partnership agreements, where the applicant is an individual.
That is awfully clear.
User interests have argued that their obligation to give notice should be restricted to licensing bodies registered under Chapter 17 of the Bill, in the interests of certainty and transparency. This argument has been carefully considered by my Department in consultation with the Office of the Parliamentary Draftsman. It was, however, concluded that the inclusion of such a cross-condition would introduce an undesirable inflexibility in the drafting of the Bill. Furthermore, since other amendments will make the registration of all section 38 licensing bodies – as well as section 145 licensing bodies – compulsory, and will require in the case of section 38 bodies that they indicate the rights holders whom they claim to represent, I suggest that these measures will allow users and potential users sufficient opportunity to be certain as to the bodies or individuals to whom they will have to give notice in order to avail of the right under subsection (1) of the new section 38.
The proposed section 38(2)(b) introduces a requirement that an intended user inform the licensing bodies of the date on and from which he or she intends to play or include sound recordings which is not time limited. This is because the setting of a specific notice period would involve an undesirable inflexibility from the point of view of users, with no significant benefit to licensing bodies.
Subsection (2)(c) secures a vital interest of both users and licensers in that it stipulates that payments should be made in arrears and at a maximum frequency of three-month intervals. There is, of course, nothing to stop collecting societies and users from agreeing to less frequent payments should this represent a suitable arrangement to both parties. However, the main point is that collecting societies can rely on three-monthly payments if that is their choice, and that liability for payment will always arise in arrears. I know that most us were very concerned about that issue.
Subsection (2)(d) requires persons exercising the right to play or include sound recordings to comply with any reasonable conditions set by the licensing body in relation to payments. This is designed to meet a concern of user interests that the legislation should avoid underpinning any attempt by licensing bodies to set unreasonable conditions as to the actual use of sound recordings in public performance, broadcasts or cable programme services. Such conditions might be, for example, that particular recordings could only be played a certain number of times per night, or that certain recordings could not be played in one venue in the same evening. It may appear improbable that a licensing body would see it in its interests to set such conditions. However, user interests claim that they have experienced difficulties of this sort in the past.
Subsection (2)(e) requires users to comply with any reasonable requests for information from a licensing body. Again, it is limited to requests for information connected with the calculation and management of payments, for reasons similar to the points made about section 38(2)(d).
Subsection (3) protects users who are in compliance with the conditions specified in subsection (2) from actions for copyright infringement at all times as if they held a specific licence granted by the owner of the copyright. Subsections (4) to (12) are standard paragraphs governing references to the controller of patents, designs and trade marks, and are not controversial. It should be noted that section 38(4) refers to a failure of a user and a licensing body to reach agreement as to fair payment. The word "fair" is included in the interests of highlighting the need for fairness in dealings between users and licensing bodies in this area, which is a matter of specific concern to user interests and, of course, to the Government.
Subsection (13) secures that licences of right will not be available where sound recordings are included in on-line, on-demand services, such as "dial-a-track" services, or Internet "on-demand music stores". It is necessary to do this because article 14 of the 1996 World Intellectual Property Organisation Performances and Phonograms Treaty guarantees producers of phonograms an unqualified exclusive right in relation to the making available of sound recordings in these circumstances.
Subsection (14) defines "licensing body" for the purposes of this section. In response to the concern of user interests that any conceivable authority or entity that could own and/or exercise the copyright in sound recording should be included, the definition is broader than that applying to authors' licensing bodies under section 145. It includes any organisation having the object of negotiating licences to play sound recordings in public and even any individual who might be entitled to exercise such a right.
User interests argued that it should be extended further to encompass all corporate entities that might own the copyright to sound recordings, irrespective of whether the negotiation of licences was one of its objects. Having discussed this matter with the Office of the Attorney General, my Department concluded that a change of this nature would be undesirable on policy grounds. Corporate entities wishing to perform an action, such as the negotiation of sound recording licenses, should have that object stated in their constitutions. Therefore, any corporate entity wishing to perform this function should, in any case, amend its constitution to ensure that its stated objects as a company include this activity.
Regarding amendments Nos. 1 to 3, inclusive, to amendment No. 16b, tabled by Deputy Owen and Deputy Stanton, I did not have much time to consider the exact texts of these amendments because they arrived recently, but I had some idea that amendments along these lines might be proposed on the basis of representations received from interested parties. My Department, therefore, had an opportunity to consult the Office of the Attorney General about the value of possible amendments on these lines. On the basis of the advice given to me following that consultation, I am not disposed to accept amendments Nos. 1 and 2 specifically because they appear to represent “to be sure” measures, which we discussed earlier, designed to spell out standards of behaviour which are reasonably implicit in the text as it stands.
Amendment No. 3 might appear to have the advantage of simplicity. However, I do not intend to accept it because the current text is the result of a carefully constructed definition of a section 38 licensing body, which was developed by the parliamentary draftsman in consultation with my Department and which it would be unwise to disrupt. From our consultation with the draftsman, one problem I foresee with the proposed amendment is that it would soften or weaken the distinction drawn in the current text between licensing bodies, which are humans, and other entities functioning as licensing bodies, which the draftsman was anxious to establish both for formal reasons and to convey precise meaning.
Undoubtedly, neither owners of the copyright in sound recording nor users of this material will be wholly satisfied with all aspects of this scheme. However, on the basis of consultations conducted by my Department, I am confident that they will accept that it represents a practical approach that will secure the legitimate interests of both parties. This also needs to be seen in the context of two further measures in which the Deputy is most interested.
First, Report Stage Government amendments Nos. 140 and 141 propose to re-introduce the power of the controller to appoint assessors to assist him in dealing with copyright references and to time limit the delivery of awards by arbitrators appointed in such references. Combined with the measure already introduced on Committee Stage, allowing the controller power to apply to the court for the removal and replacement of arbitrators who fail to act in a reasonable time, these changes should considerably accelerate the process of dealing with references to the controller of the type envisaged by the new section 38. This should eliminate much of the uncertainty that currently afflicts both users and copyright owners and help to ensure that appropriate amounts of payment are in future determined without unreasonable delay.
Second, further amendments are being introduced to place registration of all collecting societies, including those envisaged by the new section 38, on a compulsory basis. The Deputy favoured this move and I am glad we were able to achieve it. It will be necessary for collecting societies wishing to register under the new section 38 to supply the controller with the names of the rights holders whom it claims to represent and these will be placed on the public register. This should resolve concerns of users' interests as to the transparency of the collection process in this area.
In all the circumstances, I believe that we have arrived at a good resolution to this difficult problem. In arriving at that resolution, I was greatly assisted by the work of Deputies from all sides of the House in highlighting the problem in the course of the Committee Stage debate and I express my thanks, and those of the Government, for the contributions of Deputies at that Stage.
This was the most difficult, controversial and technical part of the Bill. There were 11 committee meetings and much time was spent discussing sound recordings, the position of nightclub owners and hoteliers and how to bring the conflicting interests together in the context of good legislation. As the Deputies know, there has been extensive consultation with all these parties. I thought at the outset that it would be extremely difficult to find a solution. However, we have reached one and the Members of the House contributed to that process. I also wish to thank my officials. The three of them had to work around the clock to achieve this result. I apologise again to the Deputies for the late tabling of many amendments but that was the result of trying to bring all this technical work together. This is hugely technical material.
We know.
It is the work of technical experts but we, as legislators, must bring it together and we have done our best. The Deputies were anxious to ensure compulsory registration and that has been included. I thank the Chair for the opportunity to deal with these matters at length but they are at the core of the legislation.
I recognise the tremendous efforts made by the Minister of State and his officials in this area to progress the Bill. As he said, we had major reservations about the matter on Committee Stage. There was almost a row at one stage because everybody got annoyed trying to reach consensus on it.
The Minister of State's points were technical, long and detailed. As he noted, they relate to the heart of the Bill. We are not technical experts – we represent the people – and perhaps he could give a rundown of how he considers the provisions will work in practice. If people want to play music tonight or next week, what, in plain, layman's English, will they have to do? Under subsection (5), must they inform the controller every time they want to play music? Will they have to provide a list to the controller of each tape, CD or record they wish to play?
This is the type of practical issue that will impinge on people. If one owns a hotel, nightclub, dance hall or disco and one wants to play tapes tonight, must one compile a list of them, submit it to the controller and tell him when one wants to start? Must the owner do this on every occasion? This matter is of concern and perhaps the Minister of State could outline the position.
The purpose of the amendment is to ensure that the provisions would only come into effect if there was a dispute between the owner and a licensing body. If one agreed with the licensing body, one would not have to get involved. This point relates to the core of the Bill. Will the Minister of State give a practical rundown of how the section will work? What will happen if a payment is demanded, given that amounts will be paid three months in arrears? The suggested balance could be called the "Kitt approach", whereby if both sides are upset he must be winning. I will deal later with the other amendment but I would appreciate it he outlined the practicalities in this area.
Regarding the practicalities of the issue, amendment No. 16a seeks the deletion of lines 8 to 18 on page 39, while amendment No. 16b seeks to insert a provision between lines 18 and 19. If we delete lines 8 to 18, how will we insert something between lines 18 and 19? I want to know if the amendment is worded correctly in case we get confused. Are we deleting the new section after line 7?
Yes.
Amendment No. 16b states: “In page 39, between lines 18 and 19.”. These will be new lines 18 and 19. Are we inserting it after line 7?
Yes. That will be dealt with by the Bills Office.
Like Deputy Stanton, I pay tribute to the work done between Committee and Report Stages, which I have no doubt was complicated. I know the bodies were concerned about equitable remuneration and the people paying and collecting the money had strong and trenchant views on it. I commend those who have managed to ensure that only a small dispute remains to be resolved. Clarity is being sought by the hoteliers and those who will use and pay the owners for the use of music. That is why we tabled our amendments to the Minister's amendment.
I appreciate the frankness of the briefing note we received on this complicated issue. It is not often a briefing note states that people got it wrong due to a heavy workload. Amendment No. 21, which was ill advised, was included on Committee Stage and caused a greater problem than the one we were trying to solve. Perhaps other Departments, when dealing with such complicated legislation, might recognise that they too can make inadvertent mistakes. This would help to ensure that good legislation is passed in the House which would not be struck out by the Supreme Court.
I am also concerned about subsection (5) of the Minister's amendment and that is why we tabled amendments to it. Deputy Stanton mentioned practicalities. Subsection (5) states:
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 . . .
Our amendment seeks to make it as practical as possible. We want to include the words "gives reasonable notice to the Controller that he or she has commenced or intends to commence the playing of sound recordings". We do not want a situation to develop where a person, who is playing music at a disco, decides at 10.03 p.m. to change the disc of Westlife to the disc of Tina Turner or Chris Rea – I do not want to mention my favourite music or I will be teased about it – and then realises he forgot to list it and has to find the controller, wake him up and invite him to the disco to sort it out. I am being slightly facetious but we must ensure this legislation works in a practical way. Otherwise, there will be a mess if disputes arise and people get angry with each other, as happened in one dispute which lasted for four or five years. I do not want discos or entertainment to be disrupted by disputes.
I welcome the members of the media who are listening to this debate, although they are not in the House. They are taking this debate seriously because they know how important it is. A situation could develop where a person who has studied this legislation in detail – I am sure one or two people, apart from those of us in the House, have done so – wants to stop a concert or disco because the full information has not been given to the copyright holder. Perhaps the Minister could tell us what people need to do to ensure they keep the law when organising to play a variety of compact discs and to make digital transmissions at a concert or disco.
Does Deputy Rabbitte wish to speak now?
No. I have a different angle.
I thank Deputies Stanton and Owen for their contributions and their acceptance of the fact that a great deal of work has been done behind the scenes by many people. I will accept amendment No. 1 to amendment No. 16b on the basis that it will provide the clarity suggested by Deputy Owen. I will also accept amendment No. 2 to amendment No. 16b. I accept the Deputies are seeking more clarity in these two amendments. However, I cannot accept amendment No. 3 to amendment No. 16b. A great deal of detailed work was carried out by the parliamentary draftsman and the phraseology in my amendment is correct. Perhaps we can make progress on that basis.
Deputy Stanton asked about the position with regard to night club and disco owners. Thanks to the consultation, they must work through the detailed legal process.
The Bill is better now.
Yes. They will have a licence of right to play and they must notify the licence body, which I presume is the PPI. The PPI will respond by talking about how much money is involved in terms of royalties. If the owner accepts, matters will proceed from there and the agreement will be put in place. However, if there is a problem because the owner of the disco thinks the payments are too high, he or she will proceed to the controller. It is important to point out that he or she will still be able to play music while the discussions are ongoing. It is hoped an agreement will then be reached. Arrears will have to be paid and there is a three monthly interval.
A great deal of this work was carried out by my officials who met both sides and tried to reach an agreement. It was like the work of the Labour Relations Commission or an industrial relations type activity. I instructed my officials to do that in light of our discussions on Committee Stage. As legislators, we should allow them to reach an agreement if they are able to do so. It is important to bring those people on board to ensure we introduce practical legislation.
We also have compulsory registration which will give better transparency. We have managed to reach this level of certainty thanks to the consultation and to all involved. I know that different parties were in touch with the Deputies. I am accepting two amendments, but not the third.
I thank the Minister of State. Many people will be very happy with this measure. Tremendous progress has been made on this legislation since it first appeared. We all recognise and praise the work done by the officials but perhaps the Minister of State should ensure that the section in his Department is augmented with more resources, which are badly needed.
I agree.
It is not fair to have people overworked and it is his responsibility to fight for that.
We will do that.
I want to come back to the amendment of the Minister. The one difference in that regard is that if I am an individual, not a company, who is the owner of the copyright on a sound recording, how do I proceed? The Minister of State talked about licensing bodies being a society, a company and so on, but he does not include – perhaps it is somewhere else – the individual who is not actually a licensing body but who retains ownership of the copyright. That is possibly the difference between the two.
In defining "licensing body" does it define it as an individual?
The term we use is "a human person"; I presume that is for legal reasons. The provision states "either as owner or prospective owner of the copyright in the said sound recording or as his or her . . . licensee, agents 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".
Is that the definition that will be put in section 38?
Yes. We saw the Deputy's amendment as somewhat weakening the distinction in the current text between licensing bodies, which are human persons, and other entities functioning as licensing bodies which the draftsman was anxious to establish both for formal reasons and to convey precise meaning. Our concerns are met in that respect.
We will withdraw that part of it, if that is possible.
I take a slightly different view. I agree with what has been said about the amount of work that has manifestly gone into it, and the one briefing note I got was very helpful – I agree with what Deputy Owen said about that – but I am not sure we have achieved this via media between the rights of users and the rights of owners, that is the timbre of the discussion so far. The pendulum has swung very definitely in the direction of the owners of copyright.
I have not heard the Minister of State explain what was wrong with his amendment which he proposes to excise by way of amendment No. 16a. What was wrong with his amendment? He is doing a U-turn and he is excising his own work by way of amendment No. 16a, in other words, the essential point of what he had in was the payment of equitable remuneration.
As I understand it, the Minister of State has just said he has done this because it was based on a misunderstanding of the legal meaning of equitable remuneration. That is a bit of a fantastic proposition at this stage of the day. This legislation is under preparation for a number of years. It was a long time on Committee Stage. The officials are very knowledgeable about it and I am puzzled at the simplistic proposition that it was a misunderstanding of the law. A misunderstanding of the law on whose part? Was it on the part of the parliamentary draftsman's office, the officials or the Minister of State? I find it difficult to accept that there was a misunderstanding of the legal meaning.
Another reason I am not entirely disposed to accept that explanation is that the owners met with me – they obviously met with other colleagues in the House – about this matter. One normally does not deal with what transpires in these private discussions in any detail but I must say they got up my nose well and truly. When I drew their attention to the fact that this was not my amendment but the Minister of State's, they told me not to worry about that because they would straighten him out. They were visiting him after meeting with me. I have rarely met such an arrogant—
Which organisation is that?
The owners. I have rarely met such arrogance in my time in politics. They were not just going to straighten me out, they were going to straighten out the Minister of State also and it would appear they have done that. They have straightened him out because what we have here is a complete U-turn from the position he had advocated up to now.
As Deputy Owen said, there is nothing sacrosanct about that. I accept that any of us can make a mistake. We can be put right and we can change it, and there is a frankness about the briefing note, but this is not a mistake by the Minister of State. It is an assertion of muscle by the owners and I do not believe we have achieved the via media that my colleagues have more readily accepted. Maybe they are right but I do not believe we have achieved it. A lot of users will be unhappy with the position arrived at. Protection of owners of copyright seems to be the purpose of what the Minister of State has described as this core section of the Bill.
Amendment No. 16a replaces the section to which I have referred. Amendment No. 16b is presumably the one that goes on to set out the new section. I had the same question as Deputy Stanton and I did not hear the Minister of State explain it in terms of how this will work practically, on the ground. Many people will have questions about that. I find it difficult to believe that the office of the controller will be able to deal with this situation.
It may well be that the owners are happy to have this given expression to in law and that is enough for them. As long as they have it in law, they can choose to assert it in a few high profile cases or whatever else and maybe the office of the controller will not be bunged up, but I greatly doubt the capacity of the controller to operate this measure. Many common or garden users will not know how it is to operate on the ground, as Deputy Stanton suggested.
This is a dramatic U-turn by the Minister of State on Report Stage. I am not challenging the good faith of the Minister of State, but I greatly doubt this is due to a misunderstanding about the legal meaning of the concept of equitable remuneration. This is straightforward. It is about an influential lobby group getting its way. It will be established in the years ahead that the via media we thought we might have secured on Committee Stage has not been brought forward by the Minister of State on this stage.
Deputy Rabbitte is entitled to his view. This amendment was drafted by my officials and they have achieved the right balance in this matter. We have been most transparent in the briefing documents, which I gave a commitment to produce for the Deputies in the period between Committee Stage and this stage. The Deputies requested such briefing documents and they were prepared in terms of the sections.
Equitable remuneration was the key issue that Members wanted addressed. Equitable remuneration, compulsory registration and the resources of the controller are interlinked. Considerable representations were made by Deputies and Senators on the position of nightclub owners and hoteliers, etc. regarding excessive payments being imposed on them for the playing of sound recordings.
The Minister of the day must make decisions based on achieving the right balance and doing the right thing. The Deputy might have suspicions as to my motivations and he is entitled to have them, but I will stand over my motivation in bringing this legislation in its current form to this House.
We were up-front in telling Members that when preparing the reference to equitable remuneration officials noted that a mistake was made. The former Mr. Justice Blayney in a Supreme Court judgment in the early 1990s referred to a definition of equitable remuneration. He said it means a payment which is not only subsequent to the supply of the service to which it refers but also agreed after the event. That demonstrated to me and my officials that there was an issue that needed to be addressed in the context of how—
What did the former Mr. Justice Blayney say?
He said it means a payment which is not only subsequent to the supply of the service but he also referred to the fact that it was agreed after the event. Equitable remuneration was a key provision in that judgment. In a situation where parties agree payments the reference in that judgment to "after the event" raised a concern among my officials and legal advisers.
Subsequent to that intensive consultations and negotiations were made. My officials produced a new amendment, which is before us. It is appropriate that the interested parties in this case, the users and the rightsholders, or the licensing bodies involved, should be consulted. In the times in which we live and having regard to the information available under the Freedom of Information Act, there is no great secret about the fact that officials will meet interested parties. I am pleased we live in such times.
Like the Deputy, I greatly regret that such language was used by those who approached him. It concerns me if people have a view that they could use their muscle to influence the Minister of the day. Such arrogance displayed by any lobby group is to be deplored and I resent greatly that type of approach. I assure the Deputy, although I do not believe he needs assurance, that I will not be swayed in any direction by the use of muscle by any group.
There has been an extensive period of consultation and reflection. We were up-front in our approach on Committee Stage. We told Deputies we would keep them informed of developments and some of that briefing material shows the process of change that took place and I commend my officials on that. I signed off on those briefing documents. I could have easily made them less transparent, but they show a change of thinking due to the fact that we discovered that a judgment by the former Mr. Justice Blayney was relevant. We have been up-front in our approach and have reached a resolution of this matter. I will accept two amendments tabled by Deputies Owen and Stanton.
We have achieved the right balance by way of consultation and I make no apology for that. If my officials, in particular, cannot consult the parties who will be affected by this matter, it is a poor day for democracy. Equally, I stress my motivation for doing this is based on getting the right balance. I hope this copyright legislation will prove to be worthy of the House and of our discussions.
There is no point in my chasing red herrings. I did not mention the Minister of State's motivation, good, bad or indifferent, and I do not impute any motivation to him, nor did I say that various interest groups do not have the right to make representations about their points of view. I said we have not got the right balance in this matter. I also said we have not achieved the via media between the conflicting rights that are at issue. That is an entirely different matter. I went on to describe my interaction with this representative group, which is a different matter, and how they told me that they would straighten out the Minister of State. What we have come up with seems to be along its line of thinking rather than the line of thinking of the users.
Having clarified that, will the Minister of State outline the arguments that persuaded his officials and himself that equitable remuneration was not the appropriate approach? Does his case rely on purely the misunderstanding of the legal interpretation of equitable remuneration or is it, for example, about the difficulty in asserting entitlements to equitable remuneration? Is it the view of the Department and the Minister of State that the owners were experiencing difficulty in asserting their entitlements to equitable remuneration in all cases?
There is a need to explain this to us in terms of what brought the Minister of State to take this course. I refer to his briefing note on this matter, the essence of which he put on record. It states that the Department was concerned to ensure that properly structured, practical and fair legal arrangements were put in place to govern the relationship between users of sound recordings and owners of copyright in such materials as regards payment of amounts due for public playing etc. He also said that the Department concluded that compulsory licensing or licence of right approach offered the correct route to achieve this objective. Will the Minister of State explain why the Department reached that conclusion and how that will work in the practical set of circumstances raised by Deputy Stanton? What does that mean for every establishment in the country that purports to play music in the manner prescribed in this section? What exactly do they have to do? Who sets the level of fees and such matters? How will it operate in practice?
I do not share the concerns of Deputy Rabbitte on this and we have to divert somewhat. I read the Minister's briefing note as carefully as I could and tried to understand it. I looked at the lines proposed to be deleted under amendment No. 16a. What was wrong with the Minister's amendment No. 21 was that it was put to us that there would be huge disputes over equitable remuneration which was something that was not agreed before playing the music. If it was not agreed before playing the music could the owners collect it? Equally the owners could play ducks and drakes with those who wanted to play it and say they did not believe that what was on offer was equitable. If they asked for £10,000 and were offered only £5,000 that would not be equitable.
The Minister has managed to spell out in more detail exactly how the person who wants to play the music has to proceed but also limits the rights of the owners in preventing that person from playing the music. I was struck by the note No. 4, JRCRB4, and I read carefully what PPI Limited – the group with which the Minister discussed this matter – wanted. Paragraph 11 of the Minister's note reads, "It is appreciated that this option [the option we are not accepting] falls short both of the preferences of PPI Limited who would prefer an unqualified exclusive right and the preferences of the user interests who would prefer the right of sound recording proprietors to be satisfied by the payment of equitable remuneration as provided for in amendment No. 21".
As Deputy Stanton refers to it, the "Kitt" compromise is probably the best way in which to get a solution. I do not believe the owners should have a complete and exclusive right to stop somebody playing music under certain circumstances. Equally the owners of copyright have the right to expect payment and not to be hoodwinked by fly-by-nights who use the music and disappear. That is also an argument. I am trying to adopt a balanced approach to both sides in this argument because we all enjoy the benefits of people who put their money where their mouth is by putting on concerts, discos and entertainment. I would not wish to see them thwarted but at the same time there is a responsibility on them to pay legitimate amounts to those who have written and recorded the music. This will be more significant when we come to the famous droit de suite issue because people are entitled to some economic benefit for their artistic endeavours.
I am pleased the Minister has accepted the two amendments tabled by Deputy Stanton and myself. I am prepared to accept the Minister's definition. Like Deputy Rabbitte, I am also somewhat surprised given the gestation of this legislation, that there could have been a misunderstanding of Justice Blayney's decision made in 1995 where he explained what "equitable remuneration" meant. It is difficult to understand why there might have been a misinterpretation. There was a rather quaint line in one of the other briefing documents about the Attorney General's office. I have a vision of Mr. Thompson and Mr. Rutledge et al in the Attorney General's Office – knowing the Attorney General as we all know and love him. It reads, “Following correspondence and discussions that Office [meaning that of the Attorney General] now feels able to take a broader view of the situation and has revised its advice”. There is a sense of them saying, “Oh, holy God, we have got something terribly wrong here and we can now revise our advice”. It is an interesting formulation of words. I wonder how long it took to devise that particular formula of words without making the Attorney General's office look as if it got it wrong, shall we say, that it now feels able to take a broader view. It is a masterful group of words to say, “we got it wrong, thanks for explaining it to us. We are only the Attorney General's office and we got it wrong”.
Fair dues to the Department of Enterprise, Trade and Employment for reaching, through correspondence and discussions, the point where the Attorney General's office now feels able to do something. It is a nice formula of words that I will return to in other debates and discussions when the Taoiseach stands up to argue that this is the Attorney General's advice. I will ask him to go back and have some correspondence and discussions with the Attorney General and he might feel able to take a broader view on the issue. It is a wonderful debating line. I would be pleased to give a copy of it to other Deputies if they need it for a debate.
It is somewhat unusual for a Minister in a matter of four or five months to change an amendment which he had introduced. This seems to be that kind of legislation. It is like a rolling stone gathering moss as it goes, shedding other moss and eventually reaching the point where hopefully it is a reasonably shiny surface on which no flak or unpleasant materials will stick by way of judgments in the courts, etc. I am satisfied that between our arguments and the Minister listening to them and the two sides, the users versus the copyrighters, it is not a bad agreement that has been reached.
I thank Deputies for their contributions. In regard to the term "broader view" perhaps we should seek to establish copyright on that language because it is unique. The point is made. It was related to compulsory registration. The strong view of the committee was that we should pursue that. I did that on everybody's behalf.
To get back to Judge Blayney's judgment, the best I can say is that I accept it was unfortunate that we discovered this late in the day. The briefing document shows the trail of events leading to the unearthing of that position. These things happen in drafting legislation. There is the ques tion of resources which we will have to look at with regard to our staff. As a former Minister of State in this Department, Deputy Rabbitte would know that whereas the intellectual property unit staff has increased, the problem is that other officials deal with design legislation and patent legislation. Both patent and design legislation will be coming through the House shortly. It is a busy area.
We started out with the exclusive right and moved on to the term "equitable remuneration". The judgment of Judge Blayney was unearthed and we simply had to deal with it. With regard to how it will pan out, I explained to Deputy Stanton that fees will have to be paid to the licensing body by the hoteliers, etc. If they accept those fees, that will be the end of the matter and everybody will be happy. However, if they reject them the controller will become involved.
As I told Deputy Rabbitte earlier in response to his comments about resources, we have improved the controller's position in that decisions can be made with greater speed. He can use the services of assessors and arbitrators. That will help ensure speed in this area, which was one of the complaints that arose.
The other important point is that there is now a licence of right. This means the nightclub owner or hotelier can continue to play music while the dispute is being resolved. That was an important point for users, that they would not be prevented from playing music. For every improvement for the rights owners there is an equal improvement for users. It has been difficult to do that.
At the last meeting of Ministers at EU level, there was a debate about future copyright legislation in the information age. It was remarkable that some countries such as France held an extremely pro-rights holder position; it was a far stronger position than ours. In other countries such as the UK, the user was more important. One could draw a line between those countries which have a user bias and those with a rights holder bias. In the context of EU developments, successive Irish Governments have tried to get the balance right between rights holders and users and this provision brings into focus the debate about where to strike the balance.
We have gone through changes in the Bill that ranged from exclusive rights to equitable remuneration to what is contained in this detailed amendment. I thank the Deputies for their contributions and assistance in bringing it together. I accept it will be necessary to monitor the situation vis-à-vis the controller and to ensure the resources and the new powers given to the controller will result in disputes being dealt with speedily.
I believe the balance is right in this provision.
Will the Minister address the sentence I drew to his attention? It concluded that compulsory licensing or the licence of right approach offered the correct route to achieving the objective. To be able to avail of a licence of right, one must have the licence in the first place.
There is no formal licence. One just goes ahead and plays the music. Is the Deputy referring to the term "licence of right"?
Yes.
This refers to the point I made a moment ago. There was concern that people who run discos and nightclubs could be prevented from playing music by the licensing bodies. Now there is the new term "licence of right" which is a counter proposal in favour of users to ensure they are not prevented from playing music by those who represent the music industry. The licence of right will allow the people who run nightclubs and discos to continue to play music. That is the meaning of the term.
What is the difference between that and the problem we had with "after the event" in the definition of equitable remuneration? I do not understand it.
We had to ensure those who provide entertainment would not be impeded from doing so. That is dealt with by the licence of right. With regard to "after the event", that relates to the position of the licensing bodies. The problem there was that their negotiating position was effectively being removed. This relates to the point made earlier about where the balance lies. On the one hand, we are trying to protect users with the licence of right but clearly the Blayney decision and the interpretation of equitable remuneration would put the owners and rights holders in a difficult position vis-à-vis their negotiating rights.
The provisions are complex but they are clearly pitched to ensure those who are playing music can continue to do so. Equally, given the Blayney judgment, we have inserted a new provision here. Equitable remuneration was not sufficient with regard to protecting the owners rights. That is the balance we have achieved.
Is the nub of the argument, leaving aside whatever misunderstanding there was about Mr. Justice Blayney's definition, that owners felt they could not reasonably assert their entitlements under equitable remuneration? Is that the net point?
Yes. The Deputy has been involved in negotiations on behalf of trade unions over the years. In any negotiating position it is preferable that both sides enter negotiations from a basis of equality. The point is that there was a danger of uncertainty with regard to equitable remuneration and the position, in that case, of rights owners. Clearly, that had to be rectified and it has been rectified with this new provision. The approach has been to ensure there is a sense of fairness and equity with regard to the negotiating rights of both parties.
On Committee Stage we were conscious of the excessive demands being made on owners of nightclubs and hotels with regard to payments. I was anxious to deal with that. There was a danger that they could have been prevented from playing music and we have dealt with that in a balanced way. The interpretation of Judge Blayney's decision was that it would lead to uncertainty and the term equitable remuneration would not, in my view, be fair to the owners. There would be an imbalance with regard to the negotiating position of both parties in such a situation.
What we are now calling "licence of right" ensures that the show can go on, as it were. However, how do we know that excessive demands will still not be extracted? The nightclub operator in Killarney might have a good three or four months of high summer but if demands are asserted in respect of the remainder of the year and the dispute ultimately goes to the controller, what is the capacity of the controller system to deal with that problem?
It comes back to how this will pan out. First, where there is a dispute, the disco or nightclub owner would pay what he or she considered reasonable. Second, I refer the Deputy to section 16(b)(4) which refers to fair payment. It provides that where the person intending to play a sound recording in public or to include sound recordings in a broadcast or a cable programme service and the licence body fails 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".
This is a lengthy section. The process is clear. We allow for those providing music to continue to play it. If there is a dispute the nightclub owner can pay what he or she believes is reasonable and then the process begins. At the end of the day the controller will make a judgment on what is a fair payment.
I want to put a question to the Minister which relates to circumstances where the licensing organisation would decide to put on a big push as a result of this legislation being enacted in trying to mop up whatever is out there in terms of establishments throughout the country and so on. Where there is resistance to that and where these establishments say that unfair demands are being asserted, and that is ultimately disputed, what can the Minister say to the House at this stage about the capacity of the system to respond to that situation?
It is important to point out that disco owners and nightclub owners will not be obliged to pay fees under the legislation. If they are unhappy with the provision, there is a procedure whereby they can appeal to the controller to pay what they feel is reasonable and allow the controller to make a judgment. There is also the question of registration and transparency in relation to the type of licensing bodies involved. In my view the process arrived at will ensure that a fair system is in place. I will monitor closely the situation but it is important that the law which is put in place allows for fair treatment for those who provide this service. I accept it is important that position is protected. In my view the law which is being put in place will do that and I assure the Deputy I will monitor the activities of licensing bodies in this whole area.
Amendment agreed to.
Amendment reported.
I move amendment No. 7a:
In page 27, line 13, after "including a" to insert "photograph or".
This amendment seeks to address an omission of the rights of photographers vis-à-vis the rights afforded to others under the legislation. I sought to do this by way of inclusion in the interpretation section, specifically in the definition of “literary work”. At the moment “literary work” is defined as meaning any work, including a computer program, but does not include a dramatic or musical work or an original database, which is written, spoken or sung. Including a photograph at that stage would confer the necessary rights on photographers.
I thought there was an informal understanding that we would look at this exclusion. Photographers have the same rights as any other category of journalist and it is not clear to them or to me that they have the same protection under the legislation. We are functioning in a digital age where it is very easy to distort the image of photographers, thereby diminishing their rights in terms of copyright. There was a celebrated case recently of a book entitled Thanks a Million Big Fella where the photograph presented on the cover intended to convey the impression to the public that it was an especially prominent photograph which is in the minds of most informed members of the public. However, it was a distortion or blending of two different photographs. The photographer in question, Eamon Farrell, took an action which was resolved in his favour.
I would have thought it prudent in the legislation to include photographers. I would like to put on the record of the House a paragraph from a letter I received from one photographer in this regard. It reads as follows:
I believe that you must really reflect on the digital revolution and try to imagine the future. There is every prospect that pictures will become valuable commodities to be traded across vast world-wide databases in the future, to be viewed at will on mobile phones, palmtops and through technologies not yet invented. Consider the fact that monopolists such as Bill Gates have for several years now been acquiring as many photographs (and paintings) as possible to build up monopolist databases of some of the world's most important images. I realise that this appears a very abstract argument but think again about the common good and ask yourself if it is a good thing that the use (and abuse) of copyright work is taken totally away from their authors and placed into the hands of near monopolies.
I believe that if newspapers want outright and total ownership of the intellectual and artistic output of their staff for unfettered world-wide use they should say so up front to their journalists and negotiate this through their house agreements with the appropriate trade union.
It seems a reasonable argument that there could be a number of different ways where the rights of photographers could be protected in the Bill. My amendment suggests that it should be included in the definition section.
I support Deputy Rabbitt's amendment. It is unfortunate that photographers as a group came rather late to the legislation. Obviously they were busy with their own work and we had reached the end of Committee Stage before photographers contacted our side of the House with any great gusto. I also received the letter from which Deputy Rabbitte quoted. They are now making a case about their rights in relation to copyright and they have been very graphic about the way in which photography has changed over the years. Given the way in which photographs can be digitally transmitted, one no longer obtains the old standard roll of photographs to take to the local chemist or photographic shop to be developed. Photographers who have attended functions at which I was present have shown me on their digital camera all the shots they have taken and I asked them not to show me a particular one. They show the pictures on a small screen and it is possible to use the best one. Photography has changed dramatically from the days of the Box Brownie and the enormous amount of apparatus required for developing. My husband was a photographer and his developing equipment is probably antique by now.
We want the Minister to recognise that photography involves artistic skill to the same extent as books, plays or films. We owe it to those who earn their living as photographers, and to those who enjoy it as a pastime, to recognise the artistic merit of their work. Deputy Rabbitte has found an ingenious way to do that by including it in the definition of literary work.
The treatment of photography was raised on Committee Stage and, subsequently, the Minister received representations from photographers about their right to the copyright of material photographed on film provided by their employers. They also want their work to be recognised and protected from distortion because their names often appear with the photographs they have taken.
I was subject to distortion myself in an edition of Phoenix when I was a Minister. Rather flatteringly, they took a picture of Pamela Anderson in the film “Barbed Wire” and put my head on to this scantily clad, curvaceous body and I appeared in the magazine in that way. Obviously, everyone knew it was not my body so it was clear I was not being defamed but someone who did not know me might have wondered why I posed in this semi-clad manner for Phoenix. I hasten to add that I did not do it. I saw for myself, however, how photographs can be digitally altered and the join cannot be seen. That can be damaging to professional photographers who produce good work and do not want to see it distorted.
There will be arguments about photography in other sections but this would be an ingenious way to ensure that it is well protected.
We are talking about two separate issues. Deputy Rabbitte's amendment seeks to include photographs under literary work. Photographs are allowed protection as artistic works and are clearly included in the earlier definition of artistic works in section 2. If we include them in both definitions, it may lead to confusion and, therefore, I cannot accept the amendment. Their inclusion under artistic work deals with the desire expressed in the amendment.
The separate issue of photographers in the print media was raised but amendments dealing with that subject have not been tabled, although there is one related to journalists. We sent the Deputy some briefing material about photography in general.
Regarding Deputy Owen's experience with Phoenix, there are provisions in the legislation under moral rights to protect photographers whose photographs are distorted.
The rights of photographers are contained in section 21 of the Bill, which includes them in the interpretation of "an author". In this Bill, an author is the person who creates a work and that includes photographers. Clearly, there are specific protections for photographers as holders of artistic rights.
The position of newspaper photographers is the same as that for journalists. We tried to strike the right balance between employees in the print media and the owners of newspapers. Photographers working in the print media will be granted an equal right of use of such works for purposes other than inclusion in newspapers or magazines, including on-line versions of those newspapers and magazines. These are the same provisions as for journalists but amendments have not been tabled to deal with employee photographers. We have debated journalists and newspapers at length and we have tried to strike the right balance.
We have included photographs in the definition of artistic works and that is the most appropriate way to deal with the issue. It is unnecessary to have a second reference to photographs in the section.
I did not notice its inclusion under artistic work. Is there a difference between its inclusion in artistic work and literary work? Will any entitlements be conferred as a result of its being included under literary work instead of artistic work?
The Minister raised a separate point about the equation of photographers with journalists. He says they are included in the definition of journalists. If that is so, we still have a problem because the freelance issue, which was unresolved on Committee Stage, will be as complex for photographers as it is for journalists. A good picture taken by a photographer in a particular set of circumstances is likely to be in demand with agencies across the globe. Where that photographer is not an employee of a particular print medium outlet but is instead a freelance operative, he or she will be curtailed by the legislation in terms of what he or she may wish to do. However, we will deal with that issue in respect of a later amendment.
Is the Minister of State in a position to reassure me that entitlements will not be affected and that differences will not arise as a result of inclusion of the word "photograph" in one section as opposed to another?
The answer to the Deputy's question is yes.
Amendment, by leave, withdrawn.
Amendments Nos. 7b, 103a, 104, 105, 105a, 105b, 105c, 105d, amendments Nos. 1 and 2 to amendment No. 105d, 106 and 106a are related and may be taken together by agreement.
I move amendment No. 7b:
In page 27, between lines 26 and 27, to insert the following:
"‘Oireachtas copyright' shall be construed in accordance with section 188(2);".
Perhaps I will reserve my position until I hear what the Minister of State has to say. We debated this matter on Committee Stage and I do not know why he appears to have changed the position which originally obtained in respect of Oireachtas copyright. The amendment seeks to ensure that Oireachtas copyright shall be construed in accordance with section 188(2) because the Minister of State appears to have done a U-turn in respect of this matter. I accept, however, that he may have good reason for doing so.
Section 188(2) states that "The copyright in a work to which this section applies shall be known and in this Act referred to as "Oireachtas copyright", notwithstanding that the copyright may be, or may have been, assigned to another person.". It appears that a bureaucratic requirement is being put in place that, provided it is approved by the Civil Service, a work may be assigned Oireachtas copyright and that the system which obtained on Committee Stage has been changed.
In the interests of clarity I wish to state that I will be moving amendments Nos. 103a, 105a, 105b, 105c, 105d and 106a and I will not be accepting any other amendments in this group.
On Committee Stage, Members expressed concern that the current text of the Bill relating to Oireachtas copyright is obscure and that it could create practical difficulties in the management of Oireachtas copyright. In response to those concerns I directed my Department to consult the Office of the Attorney General in this matter. The critical final outcome of these consultations is embodied in amendment No. 105d, which sets out an effective way in which Oireachtas copyright can be managed. My other amendments are, in effect, consequential on that change.
I know Deputies share the view that Oireachtas copyright is a delicate matter and most, if not all, Members of both Houses would be in favour of giving people the widest general permission to copy parliamentary materials in the civil and public interest. I had originally intended to propose an amendment which would amount to an effective waiver of the right of the Oireachtas to restrict free copying except in the event of a motion being passed by both Houses. However, I was advised that this approach could be regarded as inconsistent with the dignity of the Houses because it would represent an excessive restriction on the ability of the Houses of the Oireachtas to manage an aspect of their affairs. Most Deputies recognised that aspect during the Committee Stage deliberations.
I am concerned that some of the amendments put down—
Will the Minister of State indicate how this infringes the dignity of the Houses?
I stated that it could be an excessive restriction on the ability on the Houses of the Oireachtas to manage their affairs. We were anxious not to confer autonomy on the Houses of the Oireachtas in respect of this area.
I am concerned that some of the amendments put down, particularly amendments Nos. 105 and amendment No. 1 to amendment No. 105d, might be open to similar criticism. Amendment No. 2 to amendment No. 105d would be open to the additional criticism that it would excessively inhibit the effective management of the copyright interests concerned.
In the debate in the Seanad and on Committee Stage I referred to the difficulty of devising a basis for the management of Oireachtas copyright which would be both effective and consistent with the dignity and prerogatives of the Houses. My current proposal, which was drafted with considerable care, will provide such a basis. I know it will be necessary to operate these arrangements sensitively and I trust that the Houses and their officers will do so. I also have little doubt that in most instances the cause of free availability will win out.
While I am not in a position to accept the amendments from Deputies opposite, I am again in their debt for their work in committee on this issue which was of real help to my Department and the Office of the Attorney General in developing the necessary new approach embodied in my amendment. I thank Members for their attention in this matter.
Will the Minister of State indicate why amendment No. 105a proposes the excision from section 188 of the term “other than a Bill”? What is the purpose of changing section 188(3) which, as it stands, states: “Oireachtas copyright in a work other than a Bill shall expire 50 years from the end of the calendar year in which the work was made.”? The Minister of State did not deal with that point. If members of the public want to gain access to a Bill in the normal way and they observe the rules the House has laid down, why should they not be able to do so? Why is it necessary to delete the term “other than a Bill”?
It is important that the public interest should be served in respect of Oireachtas copyright and that interested members of the public, researchers and others should be able to gain reasonable access to instruments and documents produced by the House. That should include access to Bills because, even after a Bill is enacted, the document itself is extant and it may be no less interesting in view of the differences between the originally published version of the Bill and the version which is ultimately enacted.
The Minister of State is aware that our main concern is that Acts and Bills of the Oireachtas and other such material should be made more freely available to the public. The only argument he has put forward against this seems to involve preserving the dignity of the House. We must balance preserving that dignity against the rights of members of the public to have freer access to the Bills, Acts and other documents which affect their lives directly.
The Minister has gone some way towards allaying our concerns. However, a bureaucratic provision is being introduced under which a citizen of the State will be in breach of the copyright law if he or she photocopies a Bill or an Act without permission from the Oireachtas. The Minister is not allowing the type of freedom we would like to see extended to the citizens of the State, rather he is restricting their freedom through the imposition of a layer of bureaucracy. Which is more important, the dignity of the House or the freedom and right of citizens to gain access to material which has the effect of imposing all manner of restrictions on how they run their lives? I urge the Minister to reconsider this matter and to accept the amendments which have been tabled as being more in line with 21st century thinking.
We had a lengthy debate on this matter previously and the Minister undertook to seek legal advice on Oireachtas copyright with a view to drafting more appropriate amendments. Perhaps the Office of the Attorney General has provided advice to the Minister. I accept that the Minister has tried to take on board the essence of our previous discussion on this issue but, without any disrespect to either him or his advisers, I would have thought that the Opposition amendments were more simple, straightforward and understandable in regard to meeting our objectives. We may not have had all the fancy legal language but I believe that amendment No. 104, for example, which states that "it shall not be an infringement of copyright to copy an enactment" is absolutely straightforward and unequivocal.
Amendment No. 105d in the Minister's name seeks the deletion of lines 13 to 29 in page 108 and the substitution of: “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 .” That will make it necessary for a person who wishes to obtain such material to ascertain whether he or she fulfils the requirements of “the conditions . imposed from time to time on such materials by the Ceann Comhairle of Dáil Éireann .” It would be preferable for people to have the right to obtain such material ab initio and for the Ceann Comhairle to mark particular Acts or Bills should he wish to do so. People would, therefore, have the right to obtain or copy material other than in very rare circumstances in which conditions might be imposed.
The Minister's amendment fails to recognise that Members may also be restricted by these conditions. I would like to think that as a Member of this House, I could openly and freely access any material such as a Bill, Act, report etc. produced herein without breaching copyright. The amendment proposes the insertion of section 189(2) which states: "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 by the Ceann Comhairle of Dáil Éireann and the Cathaoirleach of Seanad Éireann." I am concerned that my rights to make copies of legislation or parts thereof might be restricted in some way. I have found it very useful in much of the legislative work we are obliged to do to pass copies of legislation on to other people to obtain their advice.
In regard to Deputy Rabbitte's query on the reasons for the proposed deletion of the phrase "other than a Bill" in amendment No. 105a, the amendment reflects the view that there is no valid ground to make the distinction that the copyright pertaining to a Bill should continue when the Bill lapses, is withdrawn or is signed into law by the President. It became apparent that the inclusion of the phrase “other than a Bill” was not appropriate.
We must ensure that these Houses have the right to reserve copyright where they choose to do so. We have spoken about the dignity and the autonomy of the Houses and I was attempting to reflect the views expressed on Committee Stage. One of the aspects of the Houses' power is the ability to protect their own papers. That appears to be a requirement laid down in Standing Orders and there may even be a constitutional issue here. Following from our Committee Stage discussions, I endeavoured to reflect the independence of the Houses. We have given the matter our best shot on this side of the House.
Is the Minister saying that no copyright attaches to a Bill?
Copyright does attach to a Bill. We are merely deleting the phrase "other than a Bill".
What does that phrase mean?
The phrase is unnecessary as the term "work" will cover Bills too.
It is a tautology, so to speak.
It was not necessary. By inserting the phrase "other than a Bill", one would exclude Bills from copyright protection. The inclusion of the phrase "other than a Bill" indicates that copyright should continue after the Bill lapsed and we felt it would be appropriate to delete that.
Am I correct in understanding that after 50 years, all Oireachtas copyright would expire but a Bill would still be covered if the distinction in regard to a Bill were to remain in the legislation?
Yes, that was not our intention.
Acting Chairman
Does Deputy Rabbitte wish to sum up?
This is beyond me, it does not make sense.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 8, 9, 10, 11 and 146 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 8:
In page 27, line 46, to delete "or effect".
This amendment relates to protection defeating devices. On Committee Stage we stated that greater consideration should be given to this new technical area. Exceptions are made in other jurisdictions in regard to this matter and I propose to outline some of them. The exceptions include allowing libraries to make good faith determinations on whether they wish to obtain authorised access to work. In other words, they would be able to circumvent protection defeating devices for that purpose. On encryption research, it has been brought to my attention that in some cases exceptions are made to allow circumvention of access control measures and the development of the technological means to identify the flaws in and vulnerabilities of encryption technologies.
Exceptions can also be made in regard to the protection of minors, which is very important. These allow a court applying the prohibition to a component or part to consider the necessity of its incorporation in technology which prevents minors accessing material on the Internet. I am sure the Minister is aware that in some cases protection defeating devices allow personal information to be collected on the user of material. Technology exists to collect and disseminate personally identifying information about the on-line activities of a natural person. Protection defeating devices, known as applets, have the effect of taking information about a user and disseminating it via the Internet so that other users can access it. The technology to circumvent applets exists. There are also exemptions permitting the circumvention of access control measures.
I could speak about reverse engineering and so on, but these subjects are extraordinarily technical. The amendments propose that the Bill defines protection defeating devices as including any device, function or product, or component incorporated into a device, function or product, the primary purpose of which is to avoid, bypass, remove, deactivate or otherwise circumvent, for infringing purposes, any rights protection measures.
Another Bill will soon be necessary to bring legislation in this area up to date. Has the Minister of State given further thought to protection defeating devices and does he propose revisiting this area in the future in order to bring the law up to date?
I commend my colleague, Deputy Stanton, who has a very fine understanding of applets and other devices about which I confess a great ignorance.
We must ensure that the terms used in legislation are operable. The section would be particularly strengthened by the addition of the words "for infringing purposes", the removal of the words "without authority" and the substitution of "unlawful" for "unauthorised" in lines 22 and 23.
It is not illegal to do something without authority. I stress the need for amendment No. 11 which would substitute the word "unlawful" for "unauthorised". A rights protection measure is defined as "a process, treatment, mechanism or system which is designed to prevent or inhibit the unauthorised exercise of any of the rights conferred by this Act". This definition would be strengthened by the substitution of "unlawful" for "unauthorised". The word "unauthorised" is not a strong one and I wonder why it was used. Our purpose is to ensure that people do not break the law.
What are the Minister of State's arguments on these amendments, particularly amendment No. 11?
Deputies Owen and Stanton have raised issues which concern the precise circumstances in which the protection afforded by the Bill to technological measures designed to protect copyright should operate. The first three amendments propose changes to the definition of a protection defeating device while the fourth and fifth amendments propose a change to the definition of a rights protection measure.
I cannot accept these amendments, for two related reasons. First, the current text of the definitions is correct. For example, the deletion of the phrase "or effect" as proposed by amendment No. 8 would leave the provisions in the Bill dealing with the protection of technological measures completely reliant on the primary purpose of the protection defeating device, potentially a difficult thing to prove by itself. On the other hand, it is hardly unreasonable for the primary effect of a device to be taken into account where this effect is unauthorised circumvention.
The second reason for not accepting these amendments is that they could affect the proper relationship between copyright and related rights with the technological means that might be used to protect them. The proper approach is to regard the protection measures as mere means to an end and not to promote them to a level where technological protection becomes something of an effectual property right in itself, independent of its base in copyright. The danger of allowing this to happen is that it could result in a situation where even the most justifiable exceptions to copyright, in education or in the provision of modified works to persons with disabilities for example, could be set at nothing by the claims of an overriding technological protection right. This is the view of most of our EU partners and is a major consideration in current negotiations on the proposed EU directive on copyright and the information society.
Pending the conclusion of these very difficult negotiations, we must tread carefully in relation to technological protection measures. This is a very live issue and, as of now, these amendments would not be advisable. I am aware of the importance of the issues raised by the Deputies and will bear them in mind, especially in the ongoing process of devising Ireland's position on the directive. I realise the amendments take us into an area which is developing at great speed.
Since the Committee Stage I have consulted the Office of the Attorney General on these proposed amendments and it has advised that they would weaken the definitions of a protection defeating device and of a rights protection measure and thus weaken the protection intended to be given in the Bill to owners of copyright who protect their work with rights protection measures. Accordingly, I cannot accept the amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 9, 10 and 11 not moved.
Amendments Nos. 11a and 12 are alternatives and may be discussed together by agreement.
I move amendment No. 11a:
In page 28, lines 43 to 46, to delete all words from and including "and" in line 43 down to and including line 46 and substitute "and a computer programme;".
I see little change in what the Minister has brought forward apart from a more economic use of English. I see no response to the arguments put on Committee Stage. My amendment refers to the definition of "work" on page 28 and seeks to deal with the restricted definition of moral rights. The question of the definition of "work" brings me back to the amendment we have just discussed which dealt with the excision of Oireachtas copyright in a work other than a Bill.
I am not sure in terms of the definition of work, that Oireachtas copyright is encompassed. The definitions of work are literary, dramatic, musical, artistic, sound recording, film, broadcast, cable programme, typographical arrangement of a published edition or an original database. I am still puzzled about amendment No. 105a that we put through proposing to delete the term “other than a Bill”. Incidentally, computer programme is spelt incorrectly. That will be picked up, no doubt.
The Deputies will recall that on Committee Stage relating to amendment No. 15, I explained why it was necessary to expand the definition of work to include the words which Deputy Rabbitte is now proposing to delete. The Deputies will recall the changes proposed in amendment No. 15 on Committee Stage were necessary because moral rights, that is paternity rights, integrity rights and right of false attribution which are provided for in Part II, chapter 7 of the Bill, only cover works which are literary, dramatic, musical or artistic works and films. Moral rights should not be provided for in a Bill relating to sound recordings, broadcasts, cable programmes, typographical arrangements of a published edition, original databases or computer programmes. Accordingly, these works had to be excluded from the definition of works for the purpose of moral rights. Therefore, I cannot accept Deputy Rabbitte's amendment which will, in effect, provide moral rights to companies in relation to sound recordings, broadcasts, cable programmes etc.
Deputies will recall on Committee Stage there was some debate as to whether the moral rights in the Bill should be extended to unnatural people or corporations such as record and film production companies. Deputies will also recall that it was the considered view that it is more appropriate to limit moral rights to human people only. Moral rights protect creativity and not investment and are rooted in the idea that an author's work is an extension of his or her personality. Where corporations are entitled to avail of moral rights, users may find it more difficult or costly to use the material even to find the right person from whom to obtain clearance. Therefore, it is not appropriate to extend moral rights to companies and I trust Deputy Rabbitte will therefore consider withdrawing the amendment.
On Committee Stage, Deputies considered that the wording of the definition of a work was clumsy and difficult to understand, especially in the context of amendment No. 15. On reviewing the matter, I am happy to say that I agree with the Deputies and accordingly, I propose amendment No. 12 which makes this definition clearly.
I do not dispute the Minister of State's point about moral rights and sound recordings but I am still puzzled as to what change is given effect by his amendment No. 12.
It was in response to our discussions on Committee Stage and it just simplifies the previous reference in the Bill.
It does not make any change except in the elegance of the English. I hope it will be clearly understood. There was more to that than clarity of English in the discussion we had on Committee Stage but I accept the Minister's criticism of my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 28, lines 44 and 45, to delete "other than in Part II, Chapter 7, and in Part II, Chapter 7,” and substitute “except in Part II, Chapter 7 where”.
Amendment agreed to.
I move amendment No. 13:
In page 29, between lines 34 and 35, to insert the following:
"(11) A reference in this Act to the copyright owner or the rightsowner shall include a reference to a person designated by the copyright owner or the rightsowner to act on his or her behalf in infringement proceedings.".
Representations have been made to me by interested parties, in particular, PPI, that because they are not assigned the copyright and sound recordings by their clients, they encounter great difficulties in infringement proceedings because infringement of copyright is actionable by the copyright owner only under the 1963 Copyright Act and under sections 124 and 294 of this Bill. It is important that PPI and other organisations should be able to pursue infringement actions on behalf of their clients. In consultation with the offices of the Attorney General, I propose this amendment which should address any problem in this regard.
Does it have any implications other than the power being conferred on PPI, in this case, to pursue infringement proceedings on behalf of their clients. Does this special measure have any other implications other than that?
That is the only implication. This concerns copyright owners being able to take action in the courts. It allows for a designated person to take action on their behalf. The Deputy's interpretation is correct.
It is purely in respect of them taking it on themselves to take that action on behalf of the client and it confers no other rights or entitlements on them?
That is correct.
On a point of clarification, the Minister of State mentions infringement proceedings. What does that include? The Minister of State just mentioned court proceedings but does it include other proceedings such as taking the case before arbiters, controllers, assessors or other such people? Is it only in such proceedings that the designation is allowed?
If the Deputy looks at section 124 of the Bill, page 72, he will see precisely what is meant by infringement proceedings.
Amendment agreed to.
Amendment No. 14 not moved.
I move amendment No. 15:
In page 36, to delete lines 3 to 7, and substitute the following:
"(2) Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical and is made for the purpose of being lawfully made available to the public in a newspaper or periodical, the proprietor of the newspaper or periodical shall be entitled to the copyright only in so far as it relates to the lawful making available to the public of the newspaper or periodical or to its reproduction for the purpose of its law ful making available to the public in the newspaper or periodical and in all other respects the author shall be entitled to the copyright subject to any agreement to the contrary.".
I am trying to fight a battle here which was lost on Committee Stage in respect of the position of journalists, specifically freelance journalists. We clarified on Committee Stage that in the case of journalists who are employees, the first ownership of copyright was vested in the newspaper, their employer. However the position that has obtained up to now in respect of freelance journalists was that they had discharged their responsibility to their employer, the commissioning newspaper, once their article was published and so on but they were quite free to enter into a separate arrangement with a newspaper in some other part of the world in respect of the same material and receive some remuneration for it.
As I understand from what the Minister has done, that position is changed and the position of freelance journalists is changed. I presume the discussion we had in respect of photographers is relevant here. Photographers would be even more likely to be in a freelance position than journalists and I cannot see the necessity to change the status quo.
I call a quorum.
Notice taken that 20 Members were not present; House counted and 20 Members being present,
I want to again draw the Minister of State's attention to the fact that the wording of the amendment derives from the Bill, as drafted. On Committee Stage and so far today he has not outlined why it was necessary for him to change his mind on this. There is no reasonable cause to interfere with the status quo and the Minister has not explained why we ought to do so. The National Newspapers of Ireland has made determined representations on this point but, if anything, the world of changing technology makes it more important that journalists retain their existing rights. I cannot see why the Minister changed his original version to the detriment of certain categories of journalists.
I have followed the debate on this legislation with some interest and I wish to address the arguments presented by Deputy Rabbitte vis-à-vis his amendment. I support the case he put. I want to reflect on one area which he touched on in his contribution, the concerns of the Press Photographers Association of Ireland about section 23, which is regarded as a significant departure from the current situation and a diminution of the rights of journalists, including photo journalists, to retain copyright on their work. By losing copyright in the way proposed, photographers would also lose the right to stop the digital distortion of their photographic images.
They would not.
This is a serious matter. There is grave concern about the implications of this section. The PPAI has pointed out that rights which many photographers and other journalists may not have realised they had are being taken away. This has serious implications for the potential of workers in the media to earn a living. Although this is a late intervention, it is the only appropriate opportunity open to me to contribute. I join with Deputy Rabbitte and other speakers in urging the Minister of State at this late stage to take on board the real concerns of print and photo journalists, on whom I lay particular emphasis. I urge the Minister of State to accept the amendment and the range of arguments offered.
The PPAI expressed concern about digital distortion and this needs attention because such distortion of photographic records is a serious matter. However, I am not sure it is appropriate to address that in this Bill. The most important and significant point is that a high proportion of print journalists are freelance and they retain copyright on their work. The legislation recognises a balance between the rights of those who produce creative work and those of their employers. However, I add a word of caution. The amendment could lead to a field day for clever lawyers. I do not think there is a floodgate argument whereby free speech will be stopped.
Will the Minister of State clarify that a journalist will remain free to make commentary on the expertise he or she assumes in the pursuit of his or her journalistic activities. I am not a big fan of the NNI but the balanced argument it has put forward on the issue of maintaining copyright in the manner which the Minister of State proposed originally is acceptable. We do not go as far in that direction as, for example, the British and journalistic freedoms are protected in a general sense, but the rights of the employer are recognised in regard to something which is written by an employee.
Digital manipulation of images should be addressed but I am not sure this is the appropriate legislation in which to do so. However, it will undoubtedly be a major issue for those of us in public life in the years ahead.
Earlier I described what happened to me in Phoenix where my head was superimposed on a picture of Pamela Anderson's body.
I would not complain.
Will the Deputy circulate copies?
I have framed it. It is wishful thinking on my part.
I thank Members for their contributions. This amendment was also tabled on Committee Stage and we went around the course on this issue. It would substantially restore the situation in the Copyright Act, 1963, whereby employee journalists in the print media would retain copyright on their work, except for the purpose of its inclusion in a newspaper. Deputy Rabbitte is correct that this wording appeared in an earlier draft. I especially thank Senators Coghlan and Ryan and Deputy Rabbitte and others who have been involved in the debate thus far. I have carefully considered the matter both prior to and since Committee Stage. 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. Accordingly, the present text of section—
I apologise to the Minister, but on a point of order, I understood we were breaking at 2 o'clock. I would not like to think, a Leas Ceann Comhairle, that you were waiting until the Minister had finished reading, to end the debate on this section. I thought we were adjourning from 2 o'clock until 2.30 p.m. Is that all right?
Does the Deputy want to do that now?
Do you wish the Minister to conclude?
He can finish that, but will he be allowed back in again?
Thank you.
The Minister will have two minutes. This is the Minister's first reply.
I wanted to try to ensure that we had this long-established right of employee journalists maintained. Accordingly the present text of section 23(2), which would assign copyright to the employer – that is, the newspaper proprietor – in such cases, while giving the employee journalist a limited right of use of the material outside the newspaper's sphere, is a reasonable and honourable compromise between the competing interests on this point. I do not wish to accept the amendment.
In effect, it is a compromise between the 1963 position and the position in the United Kingdom, which as Deputies know, takes all the rights away from the employee journalist.
As I said on Committee Stage, the case of the freelance journalist remains the same. To return to what Deputy Roche said, the journalist can obviously become involved in any other area of journalism or can produce any other work, apart from publication of the newspaper. So, there is a separation between his or her work with the newspaper and other works in which he or she might be involved. I look forward to coming back to this matter at a later stage.
Debate adjourned.
Sitting suspended at 2.02 p.m. and resumed at 2.30 p.m.