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Seanad Éireann debate -
Wednesday, 3 Jul 1929

Vol. 12 No. 18

Copyright (Preservation) Bill, 1929—Second Stage.

Question proposed: "That the Copyright (Preservation) Bill, 1929, be read a second time."

I have something to say on this Bill, and I would rather say it to-day, because I will not find it convenient to be here on Friday. The section in the Bill to which I wish to draw the attention of the House is Section 4. This Bill has been introduced as the result of a decision by the Supreme Court in a case known as the Performing Rights Society versus the Bray Urban District Council. At one time I was puzzled to know what the Performing Rights Society was; I thought it had something to do with performing animals, but it is really a society which has for its purpose the protection of copyright, a society formed to protect against the infringement of copyright on behalf of authors, and naturally it performs a very important service on behalf of the literary profession. A certain case arose on which the point was whether any copyright existed between the years 1921 and 1927, roughly speaking, the years of the interregnum after the Treaty. The Bill dealing with copyright was not introduced until 1927, and it was a question whether the copyright that had existed prior to the Treaty was valid under the Adaptation of Enactments Act or not during the period between 1921 and 1927. The court of first instance—the High Court— decided that it was, but the Supreme Court decided to the contrary. According to the judgment of the Supreme Court there was no copyright at all in the Saorstát during the five years, roughly from 1921 or 1922 to 1927, and that anybody so inclined was at liberty to pirate what he wished. Apparently this issue of infringement arose, and the position is, as I said, as laid down by the Supreme Court.

I think the House will agree with me that this is not a domestic issue at all, that it is an issue so wide as to be almost of international importance. It involves, in effect, the sanctity of an agreement under the Treaty of Berne, a Treaty to which all the leading powers except the United States are parties, and to which the Irish Free State is now a party. Being an issue of that wide and international kind, leave to appeal to the Privy Council was sought and was granted, and so far as Section 4 is concerned the effect of this Bill is to render nugatory the power of appeal, to prevent appeals and to give the decision of the Supreme Court the full and final force of law. That is the actual effect in Section 4. Senator Brown shakes his head. Would he correct me, because it would save me a good deal of time on my argument if I am wrong?

I will say a word or two after the Senator has finished.

That is my information, and it comes from a strong source, a source which I consider is fully qualified to instruct me in the matter. That involves this question of the right of appeal to the Privy Council. I do not think the Government has ever taken up the line that no appeals in any circumstances shall be permitted, or that legislation shall be used in all circumstances to prevent appeals. As far as I know the only positive pronouncement that there has been is that there shall be no appeal on issues of a purely domestic character. But nobody can say that this is a domestic issue. Under Article 66 of the Constitution the citizen is distinctly given the right to appeal, and this is a case in which this House should not permit that right to be taken away by overriding legislation. Moreover, as far as I can understand it, the Government themselves are concerned in the anomalous position that has arisen whereby no copyright was current or was protected during those years of interregnum. The object of the Bill is to put that right, and the Government, so far as I can understand, are in full sympathy with the purpose for which this case was tried. Therefore, as it appears to me, it narrows down to a rather small—I might almost say a petty—issue, that while the principle is approved, the case is determined by the appeal to the Privy Council and that under no circumstances can any matter of principle or of moral right be allowed to interfere with such an appeal. Therefore I would ask the House, when considering the Bill in Committee, to do something to put the matter in Section 4 right.

The Senator is not entirely right; in fact he is not substantially right, in his facts. The whole object of this Bill is to correct a fault in the Patents Act of 1927, by which both Houses thought that they had protected copyrights between the date of the Treaty and the date of the passing of that Act. They had done their best, as far as draftmanship could go, and they thought they had succeeded. Unfortunately, the case to which the Senator has referred arose, the case of somebody who had got an assignment of the copyright in some music that the Bray Urban Council performed. It went to the High Court, which decided that the section in the Act of 1927 did do what we all thought it did: that it protected and carried on so that there would be no interval between the old patent law and the new patent law. But the Supreme Court differed from the High Court. Nobody wants to appeal from that decision. What the Government wants to do in this Bill is to put the matter right so that other persons who were not protected during this interval should have their patents, copyrights and trade marks carried on and should have their rights preserved.

Why has an appeal been taken then? If, as the Senator says, nobody wants to appeal, why has leave to appeal been applied for?

I understand that it has been withdrawn.

Question put and agreed to.
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