Copyright and Related Rights (Amendment) Bill 2004 [Seanad]: Second Stage.

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 startsUlysses, 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 ofThe 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.

I have been a Member for some years and have not previously seen the high volume of emergency legislation which has recently come before the House. Only five months into the year we are on our sixth unplanned emergency Bill. We began the year with the Immigration Bill and subsequently dealt with the Electoral (Amendment) Bill. The Twenty-seventh Amendment of the Constitution Bill came before us in April while last week we were presented with three new Bills to deal with the Curtin case. Before us today is the Copyright and Related Rights (Amendment) Bill.

The pattern is emerging that when there is a problem, the Government legislates its way out of it. That is not the correct way to do business. Many worthwhile and important Bills are not receiving the attention they should or being enacted with the speed they deserve, including the Garda Síochána Bill, the Commissions of Investigation Bill and the disabilities Bill. These important Bills are being held up for months at a time.

The Copyright and Related Rights (Amendment) Bill has its background not in the uncertainty of the law but in another Government blunder. In 2001, the Government paid €12.6 million for originals of works by James Joyce which it now wishes to place on display. It is disingenuous to contend that the Bill is declaratory in nature and does no more than declare the law as it already stands when this is not the case. The 2000 Act is very clear. In section 37, it provides that to make a work available to the public is clearly within the prerogative of a copyright holder. Under section 41(b), making a work available includes showing it. Any attempt by the Government to place copyrighted works by Joyce on display would breach its own copyright laws. The Government was aware of this when it paid €12.6 million for the works in question, which is why it has brought forward this amending legislation.

The Bill is not declaratory but makes a substantive change to our copyright laws. To spare the Government, which spent €12.6 million to acquire something it cannot use, further embarrassment, Fine Gael and other Opposition parties and Members will support the Minister. To be honest would be a good starting point, but I do not want to make a political meal out of the Government's mess.

It would be a tragedy if these works and others like them were to be kept from the Irish people. I wish to move a number of amendments on the remaining Stages to clarify various issues such as the definition of "avoidance of doubt" and the retrospective application of the legislation. While I support the measure, the Government should consider that emergency legislation has become the norm rather than the exception. I am strongly of the view that we should not legislate our way out of problems at every hand's turn, which is happening almost every month.

Unlike the Minister of State who presented a literary tour de force, I regret deeply that I have not prepared a range of choice literary quotations to decorate the few comments I will make on the legislation. Perhaps, I regret not having the support staff the Minister has.

I recognise the Bill before us from the briefing I received last week. This is a very brief enactment with a single purpose, which is why it was intriguing to hear the Minister of State contend that it was not about the James Joyce exhibition. If the legislation is not principally to do with that exhibition, it is certainly the reason we are having this discussion.

I share Deputy Hogan's view that the alarm bells have rung so amazingly late, after a very elaborate exhibition was organised to salute the memory of one of the greatest literary figures of the world, certainly one of the greatest literary figures the island of Ireland has ever produced. It is amazing that at the last minute a specific new legislative measure should have to be introduced in this House to avoid doubt about the legal right of the National Library to present State-owned original Joyce works. One would have expected that matter to have been examined by the State immediately on the acquisition of those works.

The Minister is correct in saying that the legislation will have implications far beyond these holdings of the National Library. However, the reason the legislation is being introduced today, with a short time devoted to it and an expectation that it will be quickly passed, is that there is a serious legal doubt about the ability of the National Library to present these works, which are part of the heritage of the State, and this wonderful, important exhibition. More humility should have been shown on this matter in the Minister's Second Stage speech in acknowledging the lacuna that existed there, rather than his bravado in asserting that everything is fine and that the legislation is being introduced only as a belt and braces proposition, which as Deputy Hogan says does not stand up to forensic scrutiny of the legal position. The Labour Party and I will nevertheless not seek to delay enactment of the legislation to close off a legal loophole which would have involved certain consequences for the important Joyce exhibition had it been taken advantage of by the copyright holders.

The Minister of State said we have a very good legal intellectual copyright regime, but I am not so sure. I would like the Minister of State to appear before the Oireachtas Committee on Enterprise and Small Business to deal with the general framework within which we control intellectual property rights in this State, the progress regarding a common platform of intellectual copyright within the expanded European Union, and how the legal regime in this country and across the EU impacts on the growth potential of our State. Although we are primarily concerned about intellectual copyright in so far as the arts are concerned in the measure we are discussing, intellectual copyright goes well beyond that. It is fundamental to the future growth and development of our economy that we are modern in our approach and that we give justice to copyright holders but are flexible enough to ensure that the commercialisation of new intellectual property can be proceeded with in this State in a way that is not restrictive or in a way that is not restricted more than in competitor economies.

I would like the Minister of State to address this issue at the conclusion of the debate. I hope he will first present his analysis of where we stand regarding the legal regime in this country and its impact on the commercialisation of intellectual copyright in this Statevis-à-vis our competitor nations. Will he let us know if there is an identified need for further legislative change in this area that goes well beyond the minor clarification, to use the Minister of State’s words, or amendment that is proposed in the Bill?

Because he has heard the direct report of the Committee on Enterprise and Small Business, the Minister of State will be aware of its visit to Canada last year. One of the purposes of the trip was to look at Canada's intellectual copyright regime, which has enabled some of its dynamic universities to develop a commercialisation arm in a way which provides a model to be looked at in some detail to see how we can turn some of the intellectual property generated in our cutting edge universities and colleges of technology into added commercial value for this State. This is a separate issue which I raise in this discussion because it is of vital interest to the development of our economy and to the maintenance of the cutting-edge technologies that have driven the economy in the past ten years.

I take no issue with the proposal before us though I would have preferred if it was presented with a little more humility. The role of libraries is germane to the discussion. Libraries are an extraordinary community resource. There has been an extraordinary development in the State-wide library network in the past five to ten years. Libraries are not just repositories of books which people take out and return within a week or a fortnight. For many communities, libraries are now a historical, cultural and artistic hub. We need to acknowledge that in a way we have not done up to now and allow libraries to develop to their full potential.

The National Library is a unique institution, but despite the comments of the Minister in his Second Stage contribution, it is still daunting in terms of public access. Few people who are not scholars or readers or who have not been introduced to the National Library would find it easy to walk into the library and access what is available there. I am aware that the director of the National Library has in recent times made great strides towards addressing this issue, and much of the newer material in the library is available on its website through the Internet.

Regarding physical access, however, it would be more likely for a foreign visitor to Ireland to be ushered into the library than for a Dubliner or a citizen of this State to walk in off the street. The website has provided greater access, but we should look again to see how we could make the treasures of the National Library more accessible physically and make the extraordinary depth of scholarship available in the library available to a wider Irish audience than is currently the case. I am not criticising those who do a superb job in the National Library institutions, and I know that this issue is not the prime responsibility of the Minister of State who will be responding to this legislation.

I hope we will enact this legislation. I hope that the James Joyce andUlysses exhibition at the National Library will be a remarkable success and will be one of the appropriate markers of the centenary of Bloomsday, an iconic celebration of the literary traditions of this very literate nation.

I wish to share time with Deputies Morgan and Twomey.

Deputy Hogan pointed out in his contribution that at least six emergency Bills have been produced by the Government in this year alone. Since the beginning of the 29th Dáil close on a dozen emergency Bills have been introduced. There was also other legislation, such as the planning amendment Bill at the end of 2002, the Bill in which we changed the law relating to domestic violence because of a court decision. While some of the emergency legislation was unavoidable because of court decisions, Bills such as the Electoral (Amendment) Bill and other legislation was due to Government policies being pursued in a wrong way. This is the emergency legislation with which the Government is seeking to correct legislation which it brought before the House. The Bill was passed by the Oireachtas in 2000 by the same Minister who is seeking to put in place this amendment Bill.

Unfortunately, I was not the Minister at the time.

I meant the senior Minister.

It was in the power of the Minister of State at that stage also, not the senior Minister.

The Minister of State can eschew all responsibility.

Is the Minister of State dumping on the Minister of State, Deputy Treacy?

Who was it?

It was Deputy Tom Kitt.

Things must be bad within the Government if they seek to blame each other.

I want to keep the record straight. The Deputy does not let the facts get in the way of a good story.

Nonetheless, the principle is the same. This is the first emergency legislation to come before the 29th Dáil that seeks to correct recent legislation introduced by the Government, which says much for the way we manage our business in the House. Legislation is often rushed and often emerges in a flawed state.

We are not too proud to consider matters and correct or clarify them if necessary.

We fear that the Government might do this far too often in the future also. As a constructive Opposition, we would like to be seen putting progressive legislation on the books rather than spending all our time in this House correcting the Government's mistakes, which is not good use of parliamentary time.

We are not correcting it.

We are amending it.

We are not, we are clarifying it.

It is emergency legislation. The Minister of State can call it what he likes. However, the Bill is obviously linked to the Joyce exhibition at the National Library. While it has wider ramifications, this does not deprive it of its surreal aspect. There has often been talk in this centenary year of the setting ofUlysses of what a walk around Dublin would be like in 2004. While I suspect it might take a visit to Dáil Éireann to hear Members discussing legislation like this to find out, I wonder what James Joyce would make of it.

As a means of illustrating the national canon to the wider public, the Bill will not be opposed by my party. However, there are other copyright issues which the 2000 Act failed to properly tackle. It is unfortunate that we are introducing a very short amendment Bill to deal with one aspect inconvenient to the Government rather than considering the wider aspect of copyright law. For example, debate is ongoing about the sale of original work by visual artists where the benefit and added value goes to the buyer of the work rather than the artist. The idea of royalties for painters is a copyright issue that could and should be dealt with in legislation such as this.

This also applies to royalties and copyright in a musical context. In recent years, people have appended their name to music without having had anything to do with its production — I am thinking of the Louis Walshs of this world, who claim to be songwriters and performers. An issue also arises in regard to the way royalties for music are divided between performers, writers and record companies and promoters. Consumers are being ripped off in this area because they are being charged for having the right to own these works of art. A question arises as to who should benefit in this area.

A proper debate on copyright would address all the issues and it is unfortunate the Government has chosen not to do so. My party reluctantly supports the Bill and looks forward to proper legislation coming before the House in due course.

On behalf of Sinn Féin, I welcome the introduction of the legislation which seeks to clarify section 40 of the Copyright and Related Rights Act 2000. The uncertainty which arose in regard to section 40 has caused a significant level of difficulty for museums and art galleries. The amendment of the legislation will uphold the public interest and clear up the misunderstanding which has arisen in regard to copyright legislation in the State.

It is refreshing to see the Government bring forward legislation in a speedy manner. It raises questions as to why the same could not be done with other legislation such as the Residential Tenancies Bill 2003 and the long-promised ground rents Bill. The Government does not fully appreciate the anxiety and financial strain the ground rent issue causes to those whose leases are about to run out. It is a pity legislation on this issue could not be brought forward with equal speed.

It has been suggested that section 40 of the 2000 Act could be used to restrict the showing of an original protected artwork in the permanent collection of a gallery or display of manuscripts by the State. This would mean that an artist who had sold his or her work could subsequently prevent the showing of his or her painting or original manuscript by a gallery or museum. The most prominent case where this uncertainty related to section 40 has emerged is in regard to the threat hanging over the upcoming James Joyce andUlysses exhibition at the National Library, which is part of the Bloomsday centenary celebrations.

While understanding the desirability of the swift passage of this legislation, it would have been prudent to take this opportunity to transpose EU Directive 2001/84/EC on the resale right for the benefit of the author of the original artwork, which is due to be transposed, in any event, on 1 January 2006. The transposition of this directive would address the dissatisfaction which has been raised by artists that they do not benefit from a subsequent sale of their painting at a possibly much higher price than they receive when their artwork is first sold.

The Minister in his opening remarks referred mainly to detective-type novels. If his back-up team would like the names of some broader thinkers, I recommend that writers such as James Connolly and Bobby Sands be added to the list. I am sure this would enlighten many Members on the benches opposite.

The Bill is being rushed through to fit in with an upcoming exhibition. However, copyright is an important issue, not only in the context of intellectual copyright but also other copyrights which are constantly developing. During the debate on the Finance Bill in 2004, a whole section was dedicated to giving tax concessions to those who develop new systems in biotechnology and IT. Given that copyright was considered for tax concessions, a significant value has been put on new developments happening at present.

This debate is in the context of one exhibition on State property. Will the legislation need further amendment next year if others challenge other copyrights? While such challenges might not refer to intellectual property rights, which have been alluded to by other Members in regard to the visual arts, there may also be problems with other types of copyrights and property rights.

Given that this problem has arisen so soon after the introduction of the original legislation, perhaps we should reconsider it in its entirety so that we do not have to regularly rush through emergency legislation on other copyright issues. This issue is not that significant although it could have been embarrassing for the Government if one of its exhibitions had been held up due to copyright. However, we need to consider all the relevant legislation so that we are not just fire-walling when copyright protection issues arise.

The Minister pointed out that much of our legislation relates back to the 19th century. This is a matter we must consider because copyright is becoming important and sizeable costs and profits are associated with it. The ownership of music copyright can earn an individual millions of euro and we must ensure a problem of this nature does not arise again, particularly if it can affect the economy.

I thank Deputies Hogan, Howlin, Boyle, Morgan and Twomey for the contributions and their support for the Bill.

The Bill is short but it removes a doubt that had potentially serious consequences. Deputy Hogan may be correct in his interpretation but it is my belief that clarity is required. When we transposed the final elements of the information society directive earlier this year, most of it had already been included in the Copyright and Related Rights Act 2000. We undertook detailed consultation and many of the comments received were more pertinent to the Act than to the directive. We are now examining those comments to see what further changes to the Act are warranted.

Already, however, we have identified some areas where some change is desirable and I expect we will have another opportunity to discuss copyright in the House and in the committee, as suggested by Deputy Howlin. I agree with him that much of the work done in the universities in the past is increasingly being dealt with on a commercial basis. Universities increasingly address the importance of protection and commercialisation of intellectual property and that will benefit the country.

The Copyright and Related Rights Act 2000 contains 376 sections so it is not surprising that as it is being applied, rights holders and users identify problems in certain areas. Since that Act was implemented questions have been asked about problems that have arisen, the matter raised by the grandson of James Joyce among them. That is the reason behind this Bill, contrary to what Deputy Boyle thinks. The matter was being examined but because it became such an immediate issue, it was decided not wait for the further changes we intend to make to the Act. I can also assure Deputy Twomey that artistic works are covered in this Bill.

I thank all Deputies who contributed. We will revisit the area in the near future and I will consider Deputy Howlin's proposal.

Question put and agreed to.