Copyright and Other Intellectual Property Law Provisions Bill 2018: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
In page 9, lines 16 and 17, to delete “includes a specified transmission through the Internet and transmission by wireless means,” and substitute the following:
“means a specified transmission through the Internet, a transmission by wireless means and a transmission prescribed for the purposes of this definition,”.

Seanad amendments Nos. 1 and 2 are related and will be discussed together.

These amendments were accepted in the Seanad recently. I thank Deputies for their previous engagement on this important Bill. I hope we can conclude its passage through the Oireachtas today. While the Bill was progressing through the Oireachtas, my Department received representations from stakeholders regarding certain issues they had identified with it, as drafted. As a result, most of the amendments which are before the House were made to address those concerns and to prevent certain unintended consequences. In the case of amendments Nos. 1 and 2, stakeholders raised concerns that the new definition of broadcast was too broad in scope and could potentially be interpreted to mean that any Internet transmissions, including sound recordings, could now be regarded as a broadcast. This could impact on the sound recording producers’ exclusive right to make a work available. This was not the Department's intention when drafting the amended definition of "broadcast" so it was decided to clarify this by making technical amendments to the definition of "electronic transmission" in section 4 to clarify that sound recordings are not covered and to ensure that the rights holder's rights are protected. Amendment No. 2 provides for the insertion of a new section 5 which will ensure that there will be clarity regarding the Government's intentions. This explicitly states that the definition of broadcast will not prejudice the exclusive making available right.

I will speak briefly to the Bill as a whole before dealing with the specific amendments. Fianna Fáil supports this Bill and did so when it was before the House previously. We will be supporting the amendments from the Seanad, all of which appear to make sense. I do not see any issue with them. We are dealing with the topic of science and innovation. The Bill aims to implement and update various copyright directives and related materials, which is important.

I wish to take a moment, while we are on the subject of innovation, intellectual property and science, to refer to a cross-party briefing hosted by Deputy Harty on science and research at which many of the topics in this Bill and related matters were discussed. The Minister of State previously hosted a similar round-table forum in order to obtain cross-party support for science and research. I acknowledge the Minister of State's interest and involvement in the area. That said, there are still some outstanding issues in terms of funding and the fact that we have not hit the 2.5% of GNP target for research activities as per Innovation 2020. There are also issues around the balance between basic research and applied research and the need for a new programme for research in third level institutions, PRTLI. Such a programme existed previously and was a very important support for intellectual property development and innovation. Unfortunately, it has not been in operation in recent years, despite the obvious need for it. This debate is timely, given that we had the aforementioned discussions in the last hour as part of a cross-party group that is emerging. The Minister of State is interested in and supportive of what I am saying.

On the amendments from the Seanad, I seek clarification. I tabled an amendment in respect of the creation of an Internet archive or a digital library of the .ie domain. We have library and copyright archives of printed literature. There are copyright authorities in some of the universities and the National Library of Ireland would be part of that. One of the suggestions that came through from a number of eminent researchers, including from Trinity College library, was that we should do the same for the Internet, in terms of archiving information on the dot ie domain as part of the next wave in the copyright trajectory. The amendment in question was passed in the Dáil and I thank the Minister of State for his engagement on it. We tweaked the amendment a little to get it right and then we passed it. However, it is my understanding that when the Bill went to the Seanad, the issue was revisited and an attempt was made to push it a little further. I understand the intention. My amendment provided for the production of a report on the feasibility of creating a digital archive because I am conscious of money messages and other constraints on legislation. If I understand the amendments correctly, the Seanad attempted a more direct approach which has not worked out. That is now being amended again. The Minister of State will be familiar with the amendment to which I refer, having discussed it previously. As already stated, it was passed by the Dáil but the Seanad took a different approach. Where does it stand now? I ask the Minister of State to clarify the position.

I thank the Deputy for his comments on innovation. I acknowledge that we have not reached the 2.5% target but that is true of many countries across Europe. The innovation barometer is taken as part of our GDP so the current figure of 1.45% is probably inaccurate. The Department believes that it is probably higher than that at 1.6% or 1.7%.

On amendment No. 1, the Deputy will be aware that we invited Members of the Seanad and the Dáil to meet departmental officials to discuss it.

The big issue about which many people were concerned was capturing the web. The committee's recommendations at the time outlined the creation of a full digital deposit system intended to facilitate recording, archiving and utilisation for research purposes of the website for Irish domain names, which are not currently archived. While the intention is to record material that may otherwise be removed from the web over time, it is a significant project that requires muti-institutional collaboration, significant resources and a skill set for capturing Ireland’s digital record. An amendment requesting the introduction of such a system was tabled on Committee Stage in the this House and it resulted in good discussions with Deputies on the intention of capturing the web. Deputy Lawless's amendment remains part of the Bill and it is dealt with in section 3. In case he might think that it is not in the Bill, I assure him that it is.

This matter relates to two Departments, our Department and the Department of Culture, Heritage and the Gaeltacht, which has responsibility for some policy in that area.

In terms of what happened, stakeholders came forward who were somewhat concerned about the definition, as I said in my earlier reply. We believe that has been clarified. They raised concerns in particular about the definition of "broadcast". We believe that has been dealt with. Senators from two or three different parties who had a problem with it met our advisers, some of whom are here with me, following which the Bill was successfully passed by the Seanad without opposition. I hope that clarifies the position. If not, I can send all the relevant information to the Deputy.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 5: In page 10, between lines 19 and 20, to insert the following:
“Provisions supplementary to definition of “broadcast”
5. The Principal Act is amended by the insertion of the following section after section 2:
“2A. The definition of ‘broadcast’ shall not be construed to prejudice the exclusive right under this Act of a person to make a work available by means of a broadcast of the work.”.”.
Seanad amendment agreed to.

Seanad amendments Nos. 3 to 5, inclusive, and 7 are related and may be discussed together.

Seanad amendment No. 3:
Section 14: In page 14, to delete lines 4 to 7 and substitute the following:
“57. (1) Subject to subsections (2) to (4), it is not an infringement of the rights conferred by this Part—
(a) to make or cause to be made a copy or communication of a work for the sole purpose of illustration for education, teaching or scientific research or of preparation for education, teaching or scientific research, or
(b) for an educational establishment, for the educational purposes of that establishment, to reproduce or cause to be reproduced a work, or to do or cause to be done, any other necessary act, in order to display it.
(2) Subsection (1) shall apply only if the reproduction or communication is—
(a) made for purposes that are non-commercial,
(b) made only to the extent justified by the non-commercial purposes to be achieved, and
(c) accompanied by a sufficient acknowledgement.
(3) Not more than 5 per cent of any work can be copied under this section in any calendar year.
(4) Where a copy which would otherwise be an infringing copy is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.”.”.

The purpose of the Bill is to amend and update copyright and other intellectual property law to modernise it for the digital age and to enable rights holders to better protect their intellectual property rights in the courts. Similar to the broadcasting amendments, the amendments which are being sought to the provisions on exceptions for education purposes are as a result of concerns raised by relevant stakeholders.

Section 14 deletes the existing section 57 of the Copyright and Related Rights Act 2000 - the CRRA - and replaces it with a new section 57, as well as additional sections 57A - 57C, all of which introduce a range of new exceptions for education, teaching and scientific research. The new provisions are intended to expand to the full extent the education exceptions allowed by the EU information society directive. Following engagement with stakeholders since the publication of the Bill, and its continued passage through the Houses, it was identified that certain safeguards, which are currently contained in section 57 of the CRRA, were inadvertently removed during the drafting process. This is what created some of the problems.

Amendment No. 3 reinstates these safeguards by amending section 14, such as limiting the amount that may be copied without a licence for the purpose of education in any year. It also provides clarification regarding the actions that may be undertaken arising from the education exceptions contained in this section, and specifically references the need for users of the exception to abide by the Berne Convention three-step test, of which Deputy Lawless will be aware.

Amendment No. 4 is a technical amendment to remove two unnecessary references in the new section 57C of the CRRA to the need for licences to be used for educationpurposes. Section 50A was not created in the Bill so this phantom reference must be removed. In addition, the reference to section 50 should also be deleted as it is a consequential amendment resulting from the deletion in amendment No. 7 of the specific references to "education" from the fair dealing provision for research contained in section 50 of the CRRA.

Amendment No. 5 proposes to amend section 173 of the CRRA, which governs licences for educational establishments for the use of copyright protected works. This is a consequential amendment necessary as a result of changes to the reference for a requirement for licences from section 57 to section 57C in the CRRA. The change is to avoid any uncertainty for schools and other educational establishments about the continued need to obtain licences for the use of copyright protected works, to protect the rights of authors and publishers of educational books. That is very important.

Amendment No. 7 deletes the table as it currently appears in Schedule 1 and replaces it with a new table minus lines one to three. The deletion of these lines from Schedule 1 is necessary to remove the references to "education" from the fair dealing provision for research contained in Section 50 of the CRRA. The research provision and the education provision were intended to continue to be dealt with separately, as currently exists in the CRRA. The inadvertent inclusion of "education" in these three specific instances relating to "research" expands the education exception far beyond what currently exists and would unreasonably prejudice the rights of rights holders.

With respect to the new subsection (3), I am curious as to why specifically not more than 5% of any work can be copied under this section in any calendar year. Is that a standard percentage? Can the Minister of State explain why it states that not more than 5% of a work can be copied?

I understand from the table in the amendment No. 7 that under the heading of the column titled "Words to be substituted", generally, the word is "instruction" and under the column titled "Substituting words" the words are "education", "research", etc. Can the Minister of State clarify why these substitutions are considered necessary? Is it just an updating of language or is it because of the definition of these particular words? Can he provide clarity on both of those points.

To answer the Deputy's first question, the 5% is standard. We have checked this across Europe and so on.

To answer her second question, this is just the replacing of words. Inadvertently some words were placed in the Bill. We received legal advice on this to the effect that these words needed to be replaced to bring substance to what that particular section of the Bill is about. That is the only reason for it. We got expert opinion on that. I hope that clarifies those points for the Deputy.

Does Deputy Lawless want to come in at this point?

I do not know if this is the right time to come in. I can come in before the end.

We are discussing all these amendments together, so now is the time. The Deputy said he could come in before the end but we are dealing with these amendments. When we move on to amendment No. 6 that would be another opportunity for the Deputy to speak, but if he wishes he can speak now.

Regardless of when is the right time to do so, I will speak now for convenience. I thank the Minister for his explanation of the amendments we have discussed and it makes sense. I am happy to support that. I thank him also for his clarification in respect of section 3 regarding the digital archive.

I take the opportunity to thank the officials as well because I took up the invitation on Committee Stage to engage with them. The amendment was refined between Committee and Report Stages, at which point it was passed. I appreciate that. When preparing this afternoon, I read the debate from the Seanad. The officials were to the fore to advise and guide the Members there as well. That is also appreciated. I thank the Minister for facilitating that.

I have a final comment on the targets and the overall objectives. I appreciate the Minister of State's comments that maybe GDP has risen and maybe, on the 1.5% of GDP, we are doing better than the figures might suggest, but am sure he would agree not to set a limit on our ambition either. Not every country might be at 2.5% of GDP but many of our competitors for foreign direct investment and intellectual property generation, such as Singapore, Finland, Denmark and Israel, are. If we do not do it, this is a mobile resource that will move elsewhere. It is important to note that as well. Let us aim for the stars and see how far we get.

I see where Deputy Lawless is coming from regarding intellectual property. Of course, this Bill delves into research, etc. The Deputy is correct that there are other countries, such as Israel, which have almost reached 2.5% of GDP. I would make the following interesting point. The scoreboard dates back to the recession, particularly, the banking crisis, when we were not able to invest as much in innovation, research and development as we should have been able to do. As against that, if one looks at the innovation scoreboard, Ireland has dropped back one position but, apparently, that is not significant. We are in the top ten in innovation. Deputy Lawless is absolutely correct that it should be our goal to reach 2.5% of GDP. It would be folly and disingenuous of me to say to the Deputy that we can reach that in the next number of years. Personally, I do not think we can. We will be in a reasonable position, with many other countries across Europe. If I say to the Deputy I am aiming to get 2.5% of GDP, I certainly cannot reach 2.5% in a year or two. There is the possibility that we could reach 1.6% or 1.7% of GDP, and maybe 1.8%, which would be fairly good based on where we came from and how we were investing in innovation ten years ago, which is where the relevant scoreboard and the European directive on 2.5% of GDP came from.

Seanad amendment agreed to.
Seanad amendment No. 4:
Section 14: In page 14, line 25, to delete "50, 50A,".
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 27: In page 21, between lines 13 and 14, to insert the following:
"Amendment of section 173 of Principal Act
27. Section 173 of the Principal Act is amended—
(a) in subsection (1), by the substitution of ", 57C" for ", 57", and
(b) in subsection (3), by the substitution of ", 57C" for ", 57".".
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 106: In page 41, line 13, to delete "Bill" and substitute "Act".

This was also accepted by the Seanad. Section 106 is the result of an Opposition that was proposed on Report Stage in Dáil Éireann by Deputy Lawless. This amendment was accepted by the Government as a pragmatic way to address the issue of capturing the web. We have accepted Deputy Lawless's amendment by calling for a report to be published on the feasibility of establishing a digital legal deposit scheme for capturing the web within 12 months of the enactment of the Bill. The text of the section currently reads, "Within twelve months of the enactment of this Bill". However, the legal drafter in the Office of the Parliamentary Counsel has pointed out that technically this should read, "Within twelve months of the enactment of the Act". Therefore, I am calling for the acceptance of a minor technical amendment to correct the oversight and ensure that the text is legally sound. This was the result of an Opposition amendment that was proposed by Deputy Lawless. This amendment is accepted by the Government.

Seanad amendment agreed to.
Seanad amendment No. 7:
Schedule: In page 42, to delete lines 5 to 45 and substitute the following:

Reference

No.(1)

Principal Act

(2)

Words to be substituted

(3)

Substituting words

(4)

1

section 53(1)

instruction or of preparation for instruction

education or of preparation

for education

2

section 53(2)(a)

instruction

education

3

section 53(3)

instruction or of preparation for instruction

education or of preparation

for education

4

section 53(4)(a)

instruction

education

5

section 55(1)(b)

instruction

education

6

section 55(2)

instruction

education

7

section 61(2)

research

education, research

8

section 62(2)

research

education, research

9

section 63(2)(b)

instruction

education

10

section 67(3)

research

education, research

11

section 92(3)(a)

research

education, research

12

section 168(1)

instruction

education

13

section 171(1)

instruction

education

14

section 172(1)

instruction

education

15

section 223(1)

instruction or preparation for instruction where the copying is done by or on behalf of a person giving or receiving instruction

education or of preparation for education where the copying is done by or on behalf of a person giving or receiving education

16

section 224(1)(b)

instruction

education

17

section 229(2)

research

education, research

18

section 230(2)(b)

instructions

education

19

section 234(3)

research

education, research

20

section 245(3)(a)

research

education, research

21

section 329(1)

research

education, research

22

section 330(1)

instruction or of preparation for instruction

education or of preparation

for education

23

section 330(1)(a)

instruction

education

”.
Seanad amendment agreed to.
Seanad amendments reported.

A message will be sent to the Seanad acquainting it accordingly.