It is difficult to resume in mid-possession because I have to pick up the threads again. While there are difficulties and losses with the current system, it is the most effective system we have. If an alternative system can be introduced, we will certainly do that. At this stage, it is not available and I cannot accept the amendments regarding the television licence.
Broadcasting Bill 2008 [Seanad]: Report Stage (Resumed) and Final Stage.
I accept the Minister's point that the television licence fee has served us well in some ways in raising money. However, if we know there are inefficiencies in place and there is something like an incentive to evade paying a television licence fee, then we have a responsibility to respond to that and to change the policy. I do not want us to abandon the existing mechanism until we have an agreed new system in place.
The Minister's concern with my amendment was that I was deleting the legal base for a continuation of the television licence fee. That is not the case. It states clearly at the end of my amendment No. 129: "Nothing in subsection (1) shall affect the existing mechanisms of television licence fees during the preparation of the report under subsection (1).”. I am saying that we should leave the existing system in place, but let us force the timescale for a review. The Minister states that he is reviewing this and that if a better system comes up, he will look at it, but that is not a proactive way to deal with the issue. He knows that nobody out there will go to the time and expense of putting in place a watertight alternative revenue raising proposal to fund public service broadcasting in Ireland, unless he forces the pace on it. That is what my amendments are trying to do.
Everybody accepts that the current system is outdated, is not working as it should do and is too expensive. It would be great to tell households that we will reduce the contribution they make to public service broadcasting, because that is what we would be doing here. The 80% of those who are paying their licence fees are also paying for the 20% of those who are not paying them. We could have a system that would require all households and businesses to make a contribution towards public service broadcasting. In Greece, people pay their public service broadcasting levy via their electricity bill. There is no cost of collection, as the fees automatically get deducted. That may not be the most appropriate solution for Ireland, but there are solutions out there and unless we force the pace to find those solutions we will continue to drift along with a very inefficient system.
I support Deputy Coveney. I regret the fact that the Minister is not dealing with this in any way that recognises the problem, which is that we have an antiquated system. Twenty per cent of the people do not pay at all, while 52 people have ended up in jail for non-payment. There are advertisements that inform us that 18,000 households are visited every month. I do not believe that for a minute. The reality is that most people are not caught because one in five of us do not get caught, and if we are caught, we do not pay.
This is a practical issue about funding public service broadcasting. We must have the flow of money. It should be related in some way to the realities of technological advances. The technology will keep changing rapidly. Computers, television sets, iPods and so on are part and parcel of all households. They will increasingly be part of all households and there are other ways that are simpler, more practical and more efficient in getting a return in terms of public service broadcasting. One example is Greece and Germany also has a different system of payment.
We have spent an enormous amount of time on the Broadcasting Bill but it does not amount to a hill of beans. There are a few changes. The new authority will cost the same as the old authority but will have many functions. There will be modest changes, with a film channel and an Oireachtas channel sometime. We will not have the diaspora channel, as required in law, until whenever. There is a requirement for the Minister to deal with this issue. It would be a good legacy of a Minister who is on top of his brief to take on this challenge and accept that Ireland must move towards the digital world in a way that will ensure people pay their fair share in ensuring public service broadcasting.
Deputy McManus is correct in referring to Germany, which introduced legislation that applies a licence fee to an Internet link in 2007. There is a similar measure in Denmark, where an Internet connection is charged a licence fee. The deliberate decision taken is that we want to create a culture that encourages new technologies and this is not best served by applying a licence fee to Internet access.
Is the Minister comparing us to Denmark and Germany?
Those countries have done that. We felt it was not the best strategy. It may be the strategy in the future as matters evolve and the nature of the platform changes as the nature of broadcasting changes. I am not saying we should not do it but it might be better not to do it quickly. We should give these technologies some room to evolve and develop and to allow consumers to adapt in a range of ways. It is not technologically certain yet.
Why link it with any item? Why have the debate about televisions, laptops or PDAs? Why do we link the funding of public service broadcasting, which includes radio and television, to ownership of an item?
There is a choice. If one does not have a television, one does not have to pay. Otherwise, there would be a citizens charge applied to every citizen in the State. There is always a choice as to whether one uses television services and purchases a licence. If one does not, the licence fee does not apply. By maintaining the current system, there are difficulties but, according to RTE and our nearest neighbours, the UK, it is still the best way of collecting funds. We will review it. It would be a major review and would take time and require changes in legislation. That can be done but it is not the priority. The priorities are to get DTT in place, to ensure broadband is available across the country and allow these technologies to develop. That works better without us charging for them.
What is good for Britain is not necessarily good for us. Saying that the UK has examined this and has come to the conclusion that they should retain the licence fee and attach it to television ownership does not mean we should follow suit. The point is not that we should be charging for Internet connections or treat computers as televisions and charge for ownership of the technology but that we should seek a contribution from households or businesses, however it is structured, but not link it to ownership of an item. The Minister says that someone can make a choice by not having a television and not paying the licence fee but they can watch the television on their computer. They do not need to get a television but get the benefit of public service broadcasting over the radio. We have a hang-up about funding public service broadcasting by attaching a charge to television ownership. To force that, we have potentially an army of people checking 18,000 households, knocking on doors to see if there are television licences attached to ownership.
So they tell us.
The best case scenario is that they are doing that and, if they are, it is a major waste of money. If they are not doing it, they are not enforcing the law. Either way, it is a farce to employ people to knock on doors. For a start, they cannot get into most apartment complexes. I am not prescribing the solution but asking the Minister to make a statement in this legislation that we will have a report and recommendations on this issue within 12 months. If the recommendation is that we stick with the current system, so be it. Then we can accept that what is good for Britain is good for Ireland in this area but I do not accept that we should not examine how we fund public service broadcasting in an Irish context. For a start, we will reduce the amount people must pay and will reduce the cost of implementing it. We should be able to reduce to €2 million the €12 million it costs currently to collect €200 million. One sees this when considering what it costs the Revenue to raise taxes. I hoped the legacy of this Minister would be one of reform because he is a reforming thinker in many ways, particularly in the energy area. This could be a positive reform that the Opposition would co-operate with so that we have a more efficient mechanism for funding public service broadcasting.
The Minister said that RTE expressed a view that it would like a continuation of the television licence fee for funding. The reason behind that is that the primary concern of RTE is to see assurances that a lump sum, separate to general taxation, is put into the public service broadcasting so that RTE does not suffer from reductions in the Exchequer. That is a valid concern and any system we set up would need to take this into account. We would need to ring-fence any levy or proposed taxation for public service broadcasting for that area to give guarantees that it would not be subject to the political whim of a Minister under pressure to make savings. That is a practical problem that can be resolved. That is the motivation behind the comments of RTE on this matter. It is not that RTE supports linking television ownership with a licence that contributes to the levy.
I move amendment No. 133:
In page 143, between lines 23 and 24, to insert the following:
"(2) Where a holder of a licence for his or her normal place of residence is temporarily resident for a period not exceeding 3 months in another place in the State, he or she shall not require a licence for the possession of television apparatus in that other place.".
I have spoken to this amendment already.
I move amendment No 141:
In page 147, line 12, to delete "by post".
Has the Minister spoken to the amendment?
It was grouped with other amendments but the Minister may wish to make a brief intervention on amendment No. 141. It was discussed with amendment No. 129.
I will leave it at that.
I move amendment No. 142:
In page 148, to delete lines 12 to 18 and substitute the following:
"(4) A fixed payment notice shall not be served on the person unless at least 2 reminder notifications have issued to the person and until—
(a) a period of 28 days has elapsed since the issue of the first reminder notification, and
(b) subsequent to that period, a period of 28 days has elapsed since the issue of the second reminder notification.”.
Amendments Nos. 146 to 148, inclusive, are related and may be discussed together.
I move amendment No. 146:
In page 150, line 40, after "adult" to insert "or media".
Media literacy, which aims to increase our awareness of the nature of the many forms of media messages encountered in our everyday lives, is increasingly recognised both here and across Europe as a key element in the economic, cultural and democratic development of society. Amendment No. 146 proposes to extend the remit of the broadcasting fund to explicitly permit the funding of new television and radio programmes which advance media literacy.
Amendment No. 147 proposed by Deputy Coveney relates to the extent to which the broadcasting fund should fund news and current affairs programming. There are strong arguments against extending the scope of the broadcasting fund to such general news and current affairs programming, the first being that news and current affairs output should not be dependent on the success or otherwise of funding applications for grants from the broadcasting fund.
Such a provision would fail the additionality test, given the existing news and current affairs requirements on certain categories of broadcasters who are gifted use to the valuable radio spectrum. The final and principal argument against this is that such a provision would diminish the overall funding pool for the types of programming which have made the broadcasting fund the successful venture that it has been to date. As such, I do not propose to accept the Deputy's amendment.
Amendment No. 148 proposed by Deputy McManus proposes the ring-fencing of a specific amount of the broadcasting fund for the purposes of developing community radio. The Bill as amended contains a range of measures to assist the development of community radio in Ireland, including, inter alia, empowering the Broadcasting Authority of Ireland to award temporary contracts of up to 100 days to community radio broadcasters in section 68 and providing that the BAI, in preparing a scheme under the broadcasting fund, may have regard to the specific development needs of community broadcasters as set out in section 154(5).
These provisions, along with the increase in the proportion of television licence fee revenues allocated to the broadcasting fund, will assist the development of the community radio sector in Ireland. As such, I do not propose to accept the Deputy's amendment.
In amendment No. 147 I make the case that we would delete the section relating to the broadcasting fund, which states that the fund may not provide funding for programmes which are produced primarily for news or current affairs. News and current affairs programmes are continuing to make perhaps the most valuable contribution to public service broadcasting in Ireland. In RTE's case, it is generally accepted that the news and current affairs element is of a very high standard and the same could be said for TV3, which has made a significant effort to improve its news and current affairs programming, particularly late in the evenings.
It is a welcome development that not only does the public service broadcaster consider it part of its remit to do this but a commercial broadcaster like TV3 sees it as an attractive proposition to develop news and current affairs programmes in a way that would promote an increase in viewership. It has done that through news and current affairs programmes.
When considering the broadcasting fund as a pool of money, we should encourage independent production companies as well as established broadcasters to compete for it in making programmes. We must of course examine matters like nature, the environment, history, the Irish language and other issues abroad which would be of interest and relevance to the Irish population. We have the list just about right now after discussions, consultation and the Minister taking ideas on board and so on.
To prohibit either an independent company or broadcaster from making an application on the basis of an innovative, clever way of addressing current affairs or news is too limiting. The bar should be raised pretty high for a broadcaster to make the case to get funding in this category but to delete it altogether is wrong. We should be encouraging news and current affairs programmes developed by independent broadcasters in quirky new ways that will get a message across.
Irish production companies and presenters are particularly good at this. There is a series of Irish examples, including Dara Ó Briain and others like him, who have been very successful outside Ireland in addressing current affairs in a humorous or comedic way. We can see the kinds of projects developing at times which we should potentially support with the broadcasting fund. I would be opposed to an application, for example, from TV3 news to get funding from the broadcasting fund but we should not write off news and current affairs because we are happy with current content from RTE and TV3.
Whatever about news, current affairs can be addressed in new and clever ways that will attract a different audience, and this should be facilitated through the broadcasting fund. There should at least be an open door to applications in making that case. That is what I aim to achieve with this amendment.
Amendment No. 148 seeks a specific amount allocated to facilitate the growth of community radio. I do not want to labour the point because we debated this earlier in the context of community television. In dealing with public service broadcasting, the Minister quite often states that we need Irish stories told to Irish people. I do not disagree with that point. If one considers the kind of contact and expression that occurs at local level through local radio stations, there is no more important place for those stories to be told. This is one aspect of local radio. Community radio and television have a particular dimension that needs to be supported and acknowledged formally in some way other than the token references contained in the Bill. Its main dimension is that it is participatory; it involves local communities.
When I visited the Digital Hub recently in the Liberties, I was impressed with the work of a local community radio station based there. Many of its operators were quite elderly. While technological advance is very welcome, the danger of its march is that marginalised communities will get left behind. We must recognise this in some real way rather than just offering tokens.
The great strength of community radio and television programming is that it involves the very people of that community. Whether it is radio or television, I believe it has a good future and beneficial role to play, particularly as there is an increasing sense of being alienated in society with the loss of community being a constant refrain. It is a strength and a resource, not something to be given lip-service. We should be encouraging it.
I am not trying to be prescriptive in the amount given to such programming. Instead I am requesting the laying down of the principle in the Bill that community radio and television offers the unique dimension of a participatory nature that other forms of broadcasting do not.
While I agree with Deputy McManus, to date more than half of the money for radio programming in the broadcasting fund has gone to community radio. Sometimes we must be careful not to set quotas or restrictions which could affect the fund's flexibility.
Deputy Coveney is correct about the importance of news and current affairs to any broadcaster's schedule. A Committee Stage amendment opened up the definition of radio and television programmes considered suitable for the fund to those which raised public awareness and understanding of global issues impacting on countries other than Ireland. Many international current affairs issues could be raised through this.
The original requirements put in place 20 years ago on news broadcasting for independent broadcasters were initially seen as a burden but have become their core asset. The news and current affairs shows attract and hold listeners. Television broadcasters see news and current affairs programmes as expensive and have them on late at night when there is not a large audience. However, it is the heart of a station, giving a mix and a balance that is important and what viewers want. Viewers need to trust and know that the broadcaster has some depth to it with some fair, open and honest consideration of current affairs.
All these requirements are on a statutory footing which are enforced and extended in this Bill. The new codes we are introducing will require such news and current affairs broadcasting to be fair, impartial and a major part of programming. I do not believe we need to divert moneys from the broadcasting fund when that objective is already achieved in other parts of the legislation.
I move amendment No. 147:
In page 151, to delete lines 35 and 36.
I move amendment No. 148:
In page 153, line 29, after "fees" to insert the following:
"including a specific amount allocated to facilitate growth of community radio".
I move amendment No. 148a:
In page 162, line 39, after "continues" to insert "in being".
I move amendment No. 148b:
In page 163, line 3, after "continues" to insert "in being".
I move amendment No. 149:
In page 164, line 35, to delete "member" and substitute "member of the board of the corporation".
I move amendment No. 150:
In page 164, between lines 37 and 38, to insert the following:
"180.—(1) The Wireless Telegraphy Acts 1926 to 1988 and sections 180(1) to (11) and (13) and section 181 may be cited together as the Wireless Telegraphy Acts 1926 to 2009.
(2) The Broadcasting (Offences) Acts 1968 and 1988, sections 9 to 16 of the Broadcasting Act 1990 and section 180(12), (14) and (15) may be cited together as the Broadcasting (Offences) Acts 1968 to 2009.”.
I move amendment No. 151:
In page 164, to delete lines 38 to 44.
I move amendment No. 152:
In page 165, to delete lines 2 to 9 and substitute the following:
"(a) by substituting for the definition of “the appropriate authority” (inserted by Part 1 of Schedule 1 of the Act of 2007) the following:
"except as provided by section 9, ‘appropriate authority'—
(a) in relation to wireless telegraphy apparatus in ships and vessels associated with safety and security on board them and their operation (including the certificates of competency for the operation of apparatus for wireless telegraphy on ships and vessels), means the Minister for Transport, and
(b) in relation to any other matter, means the Commission;”,
(b) by deleting the definition of “broadcast matter”, and
(c) by inserting after the definition of “signalling station” the following:
"‘television set' has the meaning assigned to it by section 140 of the Broadcasting Act 2009.”.”.
I accept I may be out of my depth on the technical side of this amendment. It distinguishes between broadcasting that occurs on commercial shipping and fisheries vessels such as that for navigation, communications between vessels, the Coast Guard and so forth. There is a grey area, however, with privately owned vessels. Anyone lucky enough to own a sailing yacht or motor boat will have a modern communications capacity on their vessel for GPS, chart-plotting systems, satellite links for weather forecast updates and so forth. Section 180(1), which is not being amended, states:
. . . ‘broadcast' means the transmission, relaying or distributing by wireless telegraphy of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not; . . .
While I accept it is better to have shipping broadcasts coming under the remit of the Minister for Transport, who will be responsible for communications from privately owned vessels?
I assume the new authority will not be responsible because that would be farcical. Presumably it is not the Department of Transport either, because the latter has no role in respect of privately owned leisure vessels. There appears to be a vacuum in this regard on which I seek clarity.
This issue does not pertain to broadcasting but is a safety issue between the Department of Transport and the Commission for Communications Regulation, ComReg. My understanding is that given its marine safety function, the Department of Transport would be obliged to cover private vessels. This is a difficult question because it is not easy to police, as one also has vessels entering and leaving Irish waters. While this amendment delineates the powers between ComReg and the Department of Transport in a broad sense, the specific details of who should police it is a matter for those bodies. I believe the Department of Transport will have responsibility.
For clarity, as amendment No. 152 refers to "wireless telegraphy apparatus in ships and vessels associated with safety and security on board", is the Minister referring to both commercial vessels and privately owned vessels?
Yes, this also pertains to leisure craft.
I move amendment No. 153:
In page 165, to delete lines 13 to 35 and substitute the following:
""(3) A person who keeps, has in his or her possession, installs, maintains, works or uses any apparatus (other than a television set) in contravention of this section commits an offence and is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or
(b) on conviction on indictment, to a fine not exceeding €250,000.”.”.
I move amendment No. 154:
In page 166, to delete lines 3 to 6 and substitute the following:
"(9) Section 12 of the Act of 1926 is amended in subsection (1) (as amended by section 34(e) of the Broadcasting Authority Act 1960) by substituting “under the Broadcasting Act 2009” for “under Part II of this Act or under the Broadcasting Authority Act, 1960.”.
I move amendment No. 155:
In page 166, line 34, after "5," to insert "or".
I move amendment No. 156:
In page 167, to delete lines 24 to 26 and substitute "not exceeding €5,000.".".
I move amendment No. 157:
In page 167, lines 35 and 36, to delete "5, 6, and 9" and substitute "5 to 9".
I move amendment No. 158:
In page 167, after line 36, to insert the following:
182.—(1) Section 2 of the Copyright and Related Rights Act 2000 is amended—
(a) by substituting for the definition of “broadcast” the following:
"‘broadcast' means a transmission by wireless means, including by terrestrial or satellite means, whether digital or analogue, for direct public reception or for presentation to members of the public of sounds, images or data or any combination of sounds, images or data, or the representations thereof, but does not include transmission by means of MMDS or digital terrestrial retransmission;",
(b) in the definition of “cable programme service” by substituting “including MMDS and digital terrestrial retransmission” for “including MMDS”,
(c) by inserting after the definition of “database” the following:
" ‘digital terrestrial retransmission' means the reception and immediate retransmission on an encrypted basis without alteration by means of a multiplex of a broadcast or a cable programme initially transmitted from another Member State of the EEA;",
(d) by inserting after the definition of “MMDS” the following:
"‘multiplex' has the meaning assigned to it in section 129 of the Broadcasting Act 2009;”.”.
Amendment No. 158 provides for a change in copyright law to afford commercial DTT platform providers the same opportunities as cable, IPTV and MMDS operators and on similar terms. This amendment involves the complex interface between commercial DTT issues, copyright law and broadcasting policy and accordingly has been developed in close co-operation with the Department of Enterprise, Trade and Employment to ensure compatibility with copyright matters. While this amendment was withdrawn on Committee Stage, it has been reintroduced as it is considered necessary to provide a fair environment for commercial DTT. Cable and MMDS services are closed service offerings that are only accessible to the subscribers of the service. In the same way, the commercial DTT service also will be a subscription-based service, which is only accessible to its subscribers.
The proposed amendment amends section 2 of the Copyright and Related Rights Act 2000 to ensure that the rules governing the acquisition of copyright by DTT operators are the same as those which apply to cable, MMDS and IPTV services. While the changes are to the definitions of the Copyright and Related Rights Act, the effective change is through the existing section 174 of that Act. The inclusion of DTT retransmission together with MMDS and cable in the definition of "cable programme service", puts DTT retransmission on the same footing as MMDS and cable. Section 174 reflects an EU directive, namely, the cable and satellite directive of 1993, which requires member states to have such rules for cable and MMDS. DTT, of course, did not exist as a technology in 1993.
Section 174 of the Copyright and Related Rights Act provides a mechanism for cable operators to retransmit channels from other jurisdictions without directly clearing rights with the rights holders. This law differentiates between the retransmission service offered by the cable operator and the broadcast or transmission services offered by broadcasters. The cable service is a closed, subscriber based service and is not accessible free-to-air to the general public. Under these circumstances, "retransmission rights" can be acquired, which provide the right to retransmit the programmes in a controlled manner to the subscriber base. For a cable service, a copyright collection agency is responsible for managing the acquisition of cable retransmission rights between the rights holders and the cable operator.
Amendment No. 158 seeks to extend this legislation to provide a similar mechanism for the management of retransmission rights over subscriber-based DTT networks. This will mean that when channels from other jurisdictions are broadcast on the commercial subscription DTT platform, the same collection agency approach will apply. This will help ensure the development of DTT in Ireland and allow for a level playing field vis-à-vis the cable and MMDS multichannel offerings. Having withdrawn this amendment on Committee Stage, my Department has, in co-operation with the Department of Enterprise, Trade and Employment and its legal advisers, given detailed further consideration to the issues. Such consideration included examining the position in other EU countries in which such a legal regime already exists.
As Members are aware, certain Irish broadcasters expressed concern about the amendment as tabled on Committee Stage. Those concerns have been listened to and the amendment now tabled has been changed significantly. I refer to the stipulation that services must be encrypted. This will draw a distinction between channels from other member states, which may be retransmitted free-to-air and which may be encrypted, as they are pay services. When a channel from another member state is retransmitted free-to-air on DTT in Ireland, it cannot avail of the benefit of this amendment, whereas it can when it has been encrypted. I believe this draws the necessary distinction between broadcast rights for Irish free-to-air broadcasts and for non-Irish retransmissions to meet the concerns raised.
It is accurate to state that this amendment was the subject of enormous concern on Committee Stage, particularly from TV3. I acknowledge the Department has spoken in detail to the station's representatives to try to allay their fears. For the record, TV3's fears were based on its expenditure of up to €50 million to secure exclusive rights to broadcast programming in Ireland over the next five years in fields such as drama, sport, situation comedy or whatever. As a result, TV3 had a legitimate expectation that it held exclusive rights for the broadcast of the programming for which it had purchased the rights over the next four to five years. This amendment potentially had proposed that on the introduction of DTT, broadcasters based outside Ireland would be allowed to retransmit programmes in Ireland without being obliged either to have exclusivity rights for such programming or to compensate Irish broadcasters that may have purchased exclusive rights to the same programming for the next four or five years. Essentially, the money spent by a commercial broadcaster such as TV3 to nail down exclusive broadcasting rights would become worthless and a number of people from TV3 expressed a genuine fear that this simply would put the station out of business.
This was the reason Deputy McManus and I were determined not to allow the Minister to simply push through this amendment without much detailed further consideration. To be fair, the Minister has given this matter much consideration, as have his officials, who supplied me with a useful detailed briefing note in this regard for which I thank them. Is it correct to state the fundamental difference between the Minister's proposals on Committee Stage and what is now proposed is that the exclusive rights issue is only being done away with in the context of encrypted commercially-run multiplexes? Is it correct to state that foreign broadcasters will not be able to avail of the free-to-air multiplex to retransmit programming to which, for example, TV3 may have the exclusive rights to broadcast in Ireland? In other words, those who receive free-to-air television will still only be able to access programming for which TV3 has purchased exclusive rights from that station. The only compromise in that regard would be if one were to pay an additional sum to One Vision, or whatever organisation will be providing the commercial DTT product in the future, to have an encrypted service broadcast into one's home. Is this analysis correct? This is an issue of fundamental importance and I cannot overstate how concerned one broadcaster in particular is about this amendment.
If we introduce legislation that puts the only independent television broadcaster in Ireland out of business, essentially, that will be an enormous error. We cannot afford to do that. I appreciate that the Minister has considered this issue in detail. He has examined what is being done elsewhere as part of the transition from analogue to digital. I accept that it is a complex matter. The digital terrestrial television service about which we are talking is restricted to the island of Ireland. It is not an international broadcast system like Sky Television. In the case of the new digital service, we cannot impose the kind of legal restrictions that apply to the analogue service when RTE, TV3 or anybody else purchases the exclusive right to broadcast a certain programme. Broadcasters are entitled to take a punt on programmes in the hope of increasing their advertising revenues and viewing figures, etc. We need to make sure we do not fundamentally undermine that principle in this Bill.
I thank the Minister for taking the time to consider the points that have been made. The alarm bells went off when this proposal was originally discussed. Some of the concerns that continue to exist have been outlined by Deputy Coveney. I propose to refer to a note I have received, which relates to certain legal issues that may arise. I appreciate that the Minister may refute the arguments made in the note, now that he has had a chance to examine the matter. I want to highlight a couple of points that are made in the note and may be a factor in this debate. I was not aware of the points in question until I received the note.
The question of whether this measure is legal under EU law has been raised. The Minister is trying to define "DTT retransmission" as "cable retransmission" even though the EU directive on cable retransmission clearly sets out that they are separate. I assume the Minister can respond to that fairly basic point. As Deputy Coveney has said, the Minister is proposing to take away certain exclusive rights that are granted under the copyright directive. Perhaps the Minister can confirm whether the right of a copyright holder to be able to own the exclusive rights to broadcast certain material will be affected by the Bill before the House.
As a representative of Wicklow, where Ardmore Studios are based, I have concerns about another matter that was raised in the note that was sent to me. I want to be absolutely certain that this legislation will not have a negative impact in the general area of international law and trade relations. It has been argued that the Minister's proposals could well result in the US trade department putting Ireland on its "section 301" list, which is a list of countries the US is wary of because they do not respect intellectual property rights. Ireland was on that list until 2001, when the Copyright and Related Rights Act 2000 was enacted. It would not be a good idea to discourage US investment in the current economic climate. The measure we are discussing could have a particular impact on US investment in film-making at Ardmore Studios. The Minister needs to give us a firm commitment that he is satisfied the concerns raised in the note that was sent to me will not arise. It is obvious that TV3 has a particular interest in this matter. We all recognise that those involved in TV3 are running a business. We need to be conscious of the status of this legislation under EU law and the implications it will have on the intellectual property rights of US film products. I ask the Minister to deal with the concerns that have arisen on foot of this proposal. As far as I know, none of those concerns has been alleviated by the changes made by the Minister. Perhaps he can advise us to the contrary.
The fundamental point made by Deputy Coveney in his analysis is similar to the point I am making. He is correct to say that a change has been made since Committee Stage. These provisions cannot apply to a company that is broadcasting on the Irish DTT platform on a free-to-air basis. They are exclusively available to companies that have encrypted, subscriber-based systems in place.
I wish to respond to the point made by Deputy McManus about EU law. We have engaged in detailed analysis of this highly complex legal area. We believe this aspect of the legislation is firmly within the EU legal framework. Examples from other countries back up that point. We have received detailed advice on the matter from the Office of the Attorney General and other sources.
I am not quite certain of the point being made by Deputy McManus in her comments on the question of exclusive rights. The measure we are discussing relates to retransmission, rather than to primary rights for Ireland. Such rights will not be affected. We are talking about programmes that are retransmitted after the primary transmission was in another country. I do not know if that answers the Deputy's question about exclusive rights.
Deputy McManus's third point related to the possibility of this legislation giving rise to concern in the US. We have to bear in mind that rights will continue to apply. The only thing we are legislating for is the method of collecting and dispersing rights. International property rights will not be undermined in any way. In a sense, we are extending the existing system that is in place for cable and MMDS operators. This will not subvert or undermine the international property rights that are in place. It seeks to ensure that they are collected and delivered effectively on the DTT platform, just as they are in the case of cable and MMDS services.
A certain element of trust is required when the Minister says that he and his Department have got this right. I am concerned about the effect this proposal will have on this country's only national independent television broadcaster. Of all the amendments being made in this legislation, this is the one that has exercised the broadcaster in question — I do not refer to RTE or TG4 — to the greatest extent. We need to be very cautious in this area. We need to examine what has been done in other countries, to make sure we get it right. As we try to facilitate the development of a large multiplex system with a large number of channels and programmes, while avoiding long and drawn-out legal negotiations, we need to ensure that we do not treat one of this country's broadcasters in an unfair manner. That perception is continuing to come from TV3, although some of its concerns have been allayed. The Minister has assured us that programmes in respect of which exclusivity on a free-to-air multiplex service has been purchased cannot be retransmitted without some form of compensation or fee being paid. We have an obligation to lay down a warning in respect of the real concerns that TV3 continues to have. It is important that we flag such concerns in case this legislation results in the kind of calamitous response some people are predicting. The Minister's advice needs to be properly tested so we can be confident that it is correct.
Like Deputy Coveney, I want TV3 to prosper, grow and continue to enjoy success. The mechanisms set out in this Bill, across a range of sections, will help it to do so.
I move amendment No. 159:
In page 169, lines 17 and 18, to delete "9(1), (2) and (4)" and substitute "9,".
I move amendment No. 160:
In page 169, lines 31 and 32, to delete "11, 18 and 19" and substitute "11 and 17 to 20".
I move amendment No. 161:
In page 171, line 3, after "licences" to insert the following:
", subject to such exceptions as the appropriate authority may prescribe,".
I move amendment No. 162:
In page 171, lines 30 and 31, to delete "or order, as the case may be".
I move amendment No. 163:
In page 171, between lines 37 and 38, to insert the following:
"7.—(1) The appropriate authority may, whenever it considers it appropriate to do so, serve on a person a special notice, accompanied by or including a form of declaration, requiring the person—
(a) to state on the form of declaration such one or more of the matters specified in subsection (2) as is specified in the notice,
(b) to complete and sign the declaration, and
(c) to give or send the completed declaration by post to a specified officer of that authority.
The special notice is required to be in writing and to be sent by registered post.
(2) The matters which a person may be required under this section to state in a declaration are—
(a) whether he or she does or does not keep or has or has not in his or her possession any apparatus for wireless telegraphy (other than television sets),
(b) if he or she keeps or has in his or her possession any such apparatus, the nature of such apparatus, the name and address of the person by whom such apparatus was sold, let, hired or otherwise supplied to him or her and the place at which he or she keeps or has the same,
(c) whether he or she has or has not a licence granted under section 5 and then in force,
(d) if he or she has such a licence, the number, date, and office of issue of such licence,
(e) any matter which the Commission may require for the purpose of an order under section 5 of the Wireless Telegraphy Act 1972, and
(f) any other matter relating to wireless telegraphy (other than television sets).
(3) Every person on whom a special notice is duly served under this section shall, within 14 days after service, duly and correctly complete in accordance with the notice and this section the form of declaration to the officer named in that behalf in the notice. If the person fails or neglects so to complete and give or send the declaration or makes in the declaration any statement which is to his or her knowledge false or misleading he or she commits an offence and is liable on summary conviction to a fine not exceeding €1,000.
(4) In a prosecution for an offence under subsection (3) in which it is shown that a specific notice has been sent by registered post, it shall be presumed, until the contrary is shown, that the person to whom the notice was sent has not complied with the requirements of that subsection.
8.—(1) A judge of the District Court may, upon the information on oath of an officer of the appropriate authority or of a member of the Garda Síochána that there is reasonable ground for believing that apparatus for wireless telegraphy is being kept or is being worked or used at any specified place, specified vehicle or in any specified ship or other vessel in contravention of the Wireless Telegraphy Acts 1926 to 2009 or any regulation made or condition imposed under those Acts or the Broadcasting (Offences) Acts 1968 to 2009, issue to such officer or (with the consent of the appropriate authority) to such member of the Garda Síochána (as the case may be) a search warrant which shall be expressed and shall operate to authorise the officer of that authority or member of the Garda Síochána to whom the same is granted—
(a) to enter, within one month from the date of issue of the warrant, on production of the warrant, if so requested, and if need be by force, the place, vehicle, ship or other vessel named in the information,
(b) there to search for apparatus for wireless telegraphy and to examine all such apparatus or any such vehicle found there, and
(c) to seize and take away all or any part of such apparatus which appears to such officer or member to be kept, worked or used in contravention of the Wireless Telegraphy Acts 1926 to 2009 or any regulation made or condition imposed under those Acts or the Broadcasting (Offences) Acts 1968 to 2009.
(2) A search warrant granted under this section shall operate to authorise any one or more of the following, namely, any member of the Garda Síochána or officer of the appropriate authority or other person authorised by the person to whom the warrant is granted to accompany and assist him or her in the exercise of the powers conferred on him or her by the warrant.
(3) An officer of the appropriate authority may retain anything seized under this section which he or she believes to be evidence of any offence or suspected offence under the Wireless Telegraphy Acts 1926 to 2009 or the Broadcasting (Offences) Acts 1968 to 2009, for use as evidence in proceedings in relation to any such offence, for such period from the date of seizure as is reasonable, or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings.
(4) The appropriate authority shall, as soon as may be after the conclusion of any proceedings, deliver any thing seized and retained under this section to the person who in its opinion is the owner of it, unless—
(a) the appropriate authority decides it is unable to ascertain who owns the thing, in which case the Police (Property) Act 1897 applies to the thing so seized and retained, or
(b) such delivery would result in a contravention of the Wireless Telegraphy Acts 1926 to 2009 or the Broadcasting (Offences) Acts 1968 to 2009, in which case the Police (Property) Act 1897 applies to the thing so seized and retained as though the appropriate authority could not ascertain the owner of the thing.
(5) (a) A person who by act or omission impedes or obstructs an officer of the appropriate authority or a member of the Garda Síochána or any other person in the exercise of a power conferred by a search warrant issued under this section commits an offence.
(b) A person who with intent to impede or obstruct an officer of the appropriate authority or a member of the Garda Síochána or any other person in the exercise of a power conferred by a search warrant issued under this section places, erects, installs, keeps or maintains any thing commits an offence.
(c) A person guilty of an offence under this subsection is liable on summary conviction to a fine not exceeding €2,000.”.
I move amendment No. 164:
In page 173, line 3, to delete "defendant. Whether" and substitute "defendant, whether".
I move amendment No. 165:
In page 173, lines 17 and 18, to delete "or order, as the case may be".
I move amendment No. 166:
In page 174, line 3, after "ships" to insert "or other vessels".
The Minister proposes to add the words "or other vessels" after "ship" on the third or fourth last line of the Bill. Similar to an earlier question I asked him, this section relates to convictions and fines for breaches of legislation in the broadcasting area. Does his amendment refer to privately owned vessels? I can understand the need to include fishing vessels and other commercial vessels apart from than shipping vessels. The legalities of privately owned leisure craft is still a grey area. The Minister might clarify the position in that respect.
It includes private vessels.
As all amendments have been disposed, we will proceed to Fifth Stage in accordance with the order of the Dáil of today.
I thank the Deputies opposite for facilitating the passage of this Bill, which has been a long time coming. Broadcasting is one of the most difficult areas to legislate. Its regulation is not easy. It is probably one of the most sensitive and important areas in political life. As we have seen in the detail of the Bill, issues often arise in broadcasting that are highly complex and highly charged when dealing with issues such as religious advertising. It is probably one of the most difficult areas to legislate for, but the legislation is of consequence.
Similarly, the regulation by State authorities of broadcasters is hugely important and sensitive. What one person can see as a good and accurate news report, another person can see as defaming. This Bill provides for a fundamental shift towards having a single regulatory system treating public and independent broadcasters similarly. It also provides for the developing of codes and practices of such regulation in a way that will give the new regulator real authority and a clear sense of direction as to their work. That will include the oversight of funding of public service broadcasters, which is important now that we have a market where there are both independent and public service broadcasters. The Bill provides for the introduction of new codes, strengthening areas such as food advertising and other new codes which we need to continue to enforce and update. It introduces new rights of reply schemes, which are important for people who have been injured by broadcasting. A range of measures are provided for, the detail of which I will not go into. The legislation will strengthen community broadcasting and broadcasting in general with the potential introduction of Oireachtas TV, an Irish film channel and it will also strengthen the provisions in terms of the development of DTT and IPTV.
We need to constantly return to this broadcasting legislation as it is an area that will continue to evolve as technology changes. I am sure this will not be the last broadcasting Bill and that it will be further amended.
I commend in particular the Department officials who worked long and hard on this legislation, Mr. Kevin O'Brien and Mr. Bill Morrissey who are present and everyone else. They carry out their work in an exemplary fashion. I very much commend them and thank them for their consideration. It is their job to tease out some of these highly complex and difficult issues. I welcome the support for the Bill.
I wish to raise one small procedural issue. I have been asked by the Whips office to raise with the Deputies opposite the possibility of bringing forward the taking of Question Time this afternoon should the debate on the Companies (Amendment) Bill conclude early. The Whips office has asked if we would facilitate them by taking oral questions from approximately 3 p.m. to 4 p.m. rather than at 5.30 p.m. If the debate on the other legislation concludes early and if the Deputies opposite are willing to facilitate this proposal, I would be happy to do so.
That would have to be agreed.
I acknowledge the work done by the Minister and his civil servants. I am sure he is right that we will have another broadcasting Bill. I have no doubt that it will set up one regulator across the telecommunications industry. I am sure the civil servants will have that to look forward to, as perhaps will the Minister, although he may not be in the position he is now, but who knows?
There have been improvements in this Bill. I acknowledge that the Minister has listened to the Opposition in a way that does not always happen. Sometimes Ministers do not seem to hear anything that is said during a debate except their own side of the case. I acknowledge that the Minister took on board some but by no means all the points made on Committee Stage and came back with improvements.
One point he did not make, which has to be in his favour, is the fact that the Oireachtas has a role in the selection process for appointments. That is a valuable change. The door is opening slightly with the passage of this Bill but it is significant that it is opening. It is a welcome step and a sign that the there is a recognition that the old ways are not the best ways.
In terms of Question Time today, unfortunately, I have a commitment in my constituency at 3 p.m. I presumed that Question Time would not commence until 5.30 p.m. I would be more than happy to be back here by 4.45 p.m. if that is of any help. I planned my day around Question Time.
On the last item that was raised by the Minister and Deputy McManus, I would be happy to proceed with Question Time as soon as possible, but I respect that Deputy McManus has planned her day around it being scheduled to commence later. The sooner questions could be taken, the better it would be for me.
On the Bill, consideration has been long, drawn out and detailed. I thank the Minister's officials as well for the briefings we were given when we asked for them. A genuine effort was made to keep the Opposition informed on most details and that is welcome.
I also acknowledge that the Minister took on board much of what, although not everything, we asked for on Committee Stage. I am disappointed this legislation is not more ambitious in terms of the reform it seeks to bring about. We could have made much braver attempts to put in place a more modern, effective, cost-effective in particular, and fairer system of funding public service broadcasting or at least given an indication in the legislation that we would do that. It was decided not to do that. That is being overly cautious and represents a missed opportunity.
I recognise that other positive reforms are being introduced in regard to the new channels being proposed. The film channel in particular is a brave step by the Minister in an attempt to support Irish film and Irish film industry. That is a positive measure. The funding around that may not be as straightforward as the Minister has suggested, but we will wait and see how that develops in the months and years ahead.
I made a point during the debate on Second Stage, which Deputy McManus has carried forward more recently and in a far more proactive way than I have. The idea of having a single communications regulator that would also deal with broadcasting makes sense in Ireland and it is a pity it was not fully developed at a much earlier stage. This is something that will probably happen in time; ComReg will be the regulator for transmission and facilitation of media through broadband but will also manage content, similarly to the UK's Ofcom. I welcome the fact that we have now moved away from having separate regulatory regimes for public and private sector broadcasting. It is important that we apply the same standards to RTE as to TV3 and others.
I acknowledge the efforts the Minister has made to protect children in advertising by setting up new codes and giving powers to the new authority. This is genuinely welcome. We should have gone further and applied the same rationale to alcohol advertising that we apply to junk food advertising which targets children. This is something to which we may return at a later stage.
This has been an interesting process that probably would have finished six months ago if it were not for the crises we have had to deal with in the House, which distracted legislators from Bills such as this one. This resulted in an embarrassing situation in which RTE did not have a board for six or eight weeks at the start of the year because this Bill had not been finalised. Some lessons have been learned in terms of process. I thank the Minister for accepting more amendments than most other Ministers would have for such legislation and I encourage him to continue to consider the kind of reform we have been proposing, even though it has not been part of this Bill.
I ask the Minister to bring the query about Question Time to the attention of the Chief Whip so that he may liaise with the other Whips and come back to the House.
In accordance with Article 20.2.20 of the Constitution, the Bill will now be sent to the Seanad.