I move: "That the Bill be now read a Second Time."
"Stately, plump Buck Mulligan came from the stairhead, bearing a bowl of lather on which a mirror and a razor lay crossed." So starts Ulysses, and I suspect that, as he progressed his way across Dublin, Mr. Bloom little thought that here today, almost 100 years later, we would be recollecting his epic saga. The reason I refer to this today is that if one were to look at the media coverage of this Bill, one might well infer that its sole purpose is to protect the exhibition “James Joyce and Ulysses” at the National Library of Ireland, which will open shortly and mark the centenary of Bloomsday. However, this is not the case.
The purpose of the Bill before the House is to remove any doubt over section 40 of the Copyright and Related Rights Act 2000, which provides that the right of making available a work to the public includes, inter alia, performing, showing or playing a copy of the work in public. In the context of the Act, work means, with some exceptions which do not affect the issue before us today, a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, typographical arrangement of a published edition or an original database and includes a computer programme.
I am satisfied that within section 40, the reference to "showing" was intended to cover audio-visual works, for example, the showing of a film. However, it has been suggested that the reference to "showing" effectively created a public exhibition right. This would mean that, for example, an artist could prevent the "showing" of his or her painting by a gallery.
Last November, my Department held a meeting with a number of national cultural institutions. In a related submission, it was suggested to us that the showing of an original protected artwork in the permanent collection of a gallery could be a restricted act.
More recently, my Department took a call from one of Ireland's leading legal firms. It stated that it was acting on behalf of an exhibitor and indicated it was satisfied that the Act effectively created an exhibition right. It wondered whether this was the intention. It was advised that it was not intended to create such a right and that the Department was not aware of any particular problems which had arisen as a result of the provision which, of course, had not been tested. It suggested that the position was unsatisfactory and left exhibitors in a very difficult position. It opined that a rights-holder could force the closure of an exhibition. While I do not know what exhibitor they were acting for, I am aware it was not the National Library.
An amendment to section 40 was one of a number of issues which we planned to address in the copyright area. However, given that many exhibitors may be faced with difficulties in this area, we have decided that rather than awaiting a suitable intellectual property vehicle, we should move to make the amendment now. Legislation is essentially about balance. Does our intellectual property legislation achieve this balance? Overall, it probably does, though the issue is complex, often with very good arguments on both sides. The issue is complicated by the nature of intellectual property law.
Last month we welcomed ten new member states to the European Union and questions were understandably raised as to how the Union would function with so many around the table. It is now just over 30 years since we joined in 1973. At that time, our legislation was Irish in the sense that, generally, while we may have looked to how others addressed issues, we determined what went into our legislation. After we joined, of course, some of our legislation was determined by what was decided in Brussels. We were part of this process but obviously in many instances compromises had to be made.
In the field of intellectual property matters were quite different. Here the international influence went further back, to the Paris Industrial Property Convention of 1883, and the Berne Copyright Convention of 1886. Both have been adapted many times since and both are now administered by the World Intellectual Property Organisation. With 180 member states, the negotiation process is understandably slow and trying to reach agreement on issues which may be viewed quite differently by the member states, is not easy. However, I believe we have a sound intellectual property regime.
While the rights given in copyright might be seen by some as going unnecessarily too far, one must consider what is involved. When Sherlock Holmes apparently fell to his death at the Reichenbach Falls, public outcry led Arthur Conan Doyle to resume the stories about the great detective, explaining how he had not actually fallen. Arthur Conan Doyle need not have resumed these stories and could, if he wished, have prevented any publication of his earlier stories, subject, of course, to any contractual obligations.
TS Eliot spoke of The Moonstone as “the first, the longest, and the best of modern English detective novels.” This was published in 1868, but applying today’s copyright law to it would mean that Wilkie Collins would hold copyright in the novel, but not in the concept of the detective novel. Copyright protects the expression of the idea, not the idea itself. So while we might not have enjoyed Sherlock Holmes, other detectives could be and were written about. So these rights, while they might lessen our enjoyment in some instances, do not threaten our well being. For this reason, the law is slow to interfere in the enjoyment of these rights. In the case of patents, the position is different, with provision for compulsory licences, where such are deemed necessary.
While I believe that section 40 does not create a public exhibition right, it is clear that if the counter view were to be found correct, the implications of potential legal actions by copyright holders would be very serious. They would have a bearing on a national basis on practically every gallery, exhibition centre, and any other relevant premises that display copyrighted works across the country. The need for this amending Bill is to remove doubt over the display of artistic and literary works and to allow for their continued display in line with the strategic and business objectives of the relevant institutions.
We, as a nation, rightly have a great pride in our artistic and literary heritage. The diversity, originality and value of that heritage should in no way be compromised by an interruption of the basic right to display artistic and literary material to the public under appropriate conditions. It would be grossly unfair and unreasonable if the display of items could be hindered due to a right created unintentionally by the Copyright and Related Rights Act 2000.
While it may not be relevant to the field of copyright law, it is pertinent to point out that a copyright holder may ultimately benefit from the public display of works of art and literature. The interpretation of work by the professional staff of the institution displaying it makes it more accessible and attractive to the viewing public. The positive aspects of this process are sure to influence future consumption and income for the copyright holder.
It may be helpful to provide some specific examples. The National Museum of Ireland occasionally exhibits works still in copyright which it wishes to display in the context of a specific exhibition or theme. A clear example is the Eileen Gray exhibition at the National Museum at Collins Barracks. Eileen Gray was born in Brownswood, County Wexford, in 1878 and died in Paris in 1976. She was a painter, designer and architect who made a major contribution to early 20th century design. She occupies a unique and seminal position as the head of what we now recognise as the modern design movement.
Eileen Gray is today celebrated worldwide due to her influence on designers and architects like the great Le Corbusier. The exhibition in the National Museum contains original materials which were her property including furniture, drawings, records, letters and personal memorabilia all of which was purchased for about €1.25 million. While copyright in the drawings and written material lies elsewhere, it should not be permitted to inhibit the National Museum from displaying and interpreting this important part of our heritage.
There are works on display in the National Gallery of Ireland which are considered to be important heritage items forming an integral part of the story of the progression of art in Ireland. These include works by Louis le Broquy, Paul Henry and Jack B. Yeats. A large percentage of works on display at the Irish Museum of Modern Art are by living or recently deceased artists. The role of the museum, which incorporates an award winning education and community department, could be severely hampered by the creation of an exhibition right.
Claims of exhibition rights might inhibit the National Library in its plans to place the works of some of Ireland's greatest writers, including Sean O'Casey, on display over the coming years. This is of particular concern in view of its development of new exhibition spaces to facilitate such events. An exhibition right would have a negative effect on the library's attempts to enhance its role as the repository of the world's largest collection of Irish documentary material. Only now is the library finally in a position to share more of its treasures with the public and to offer the public the most up-to-date interpretative facilities.
The effects of an exhibition right would also be felt throughout the network of private galleries which form an important part of the Irish art industry. The absence of a right to display copyrighted works could seriously hamper the ability of galleries to engage with art dealers, art owners and art enthusiasts. In the long term, the effect would be to compromise hard-earned international reputations. Even exhibitions in local libraries could be undermined by doubts about the entitlement to display copyrighted materials. This would affect the many exhibitions organised by proactive local librarians across the country.
An exhibition right might attach to literary and artistic works travelling to Ireland from abroad. When a work in respect of which copyright remains extant arrives in Ireland, it is often following lengthy and complex negotiations. An exhibition right might place the copyright owner in a position to bring an action against the public or private institution planning an exhibition. The effect of such actions on what are often short-term displays could be the avoidance altogether by institutions of exhibitions of this type thereby denying the public access to developing art. These are examples of scenarios which could arise though there might not be problems in individual cases. Where an institution purchases an item directly from the holder of the copyright, there should be no problem.
Other rights are not affected though exhibitors may wish to reflect on steps to ensure that no right is not infringed. To avoid doubt, the Bill provides that no infringement of any right created by the Copyright and Related Rights Act 2000 in respect of an artistic or literary work occurs by reason of the placing on display the work or a copy thereof in a place or premises to which members of the public have access. I stress that this amendment is for the avoidance of doubt. We are not seeking to change the current position. I commend the Bill to the House.
