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Seanad Éireann debate -
Wednesday, 13 Mar 1963

Vol. 56 No. 6

Copyright Bill, 1962—Committee Stage.

Sections 1 and 2 agreed to.
Question proposed: "That Section 3 stand part of the Bill."

I must confess to being in some difficulty, not being sure that I am in order in the sense that I have some general complaint about the Bill which I did not raise on Second Reading last week. As most of my difficulties arise on specific points, I thought better to wait until Committee Stage. Frankly, my chief difficulty is that I have not an idea in the wide world what Section 3 means. I would not mind so much, because it is a highly complex Bill and a layman like myself is not meant to know, except that, I take it, its purpose is to assist in the interpretation of the Bill.

I have read Section 3 so many times that I have lost count. Instead of helping me to interpret the Bill, it certainly makes confusion worse confounded. This business of saying that "Except in so far as the context otherwise requires any reference" means so and so, and then "Provided that, for the purposes of the following provisions of this Act" it does not affect it. Again, we have "with regard to publication, the provisions of this subsection shall have effect". Then you find in paragraph (b) of subsection (2) that that is true except in so far as, oddly enough, it may deal with what I thought the Bill would deal with— copyright.

I know very well that a lot of my difficulty results from my not being a lawyer and, therefore, not being conversant with these phrases. I thought the general purpose of this particular type of legislation—something which is tidying up, bringing together, clarifying —would be to prevent litigation, that is, to make the law so clear that people would not be provoked into courts of law to get something interpreted. I also think it would be desirable that legislation should be reasonably clear to legislators. It is not very nice to find oneself in the position of helping the passage of a Bill through the House and realising that most of it is incomprehensible.

In paragraph (b), subsection (2), there is a phrase "a publication which is merely colourable". What that means I should like to know. I would have thought that legislation demanded fairly distinct descriptions. I cannot think of anything more vague and more readily interpreted in probably a dozen ways than a phrase like "merely colourable". "Colourable" alone would be bad enough but what "merely colourable" means I do not know. If I say that something is a colourable imitation of something else I would intend to mean that it was a fair imitation, a recognisable imitation; but when I say "a merely colourable imitation" I do not know what I mean.

I think the Minister will probably agree with me that it would not be very difficult to envisage the probability that this one phrase could give rise to endless litigation in the sense that a great deal would depend on the court hearing it and the interpretation the court would put on vague phrases like "merely colourable". I should be glad, in relation to the whole section, if the Minister would not mind giving some résumé of what the intention is. I should like, in particular, to know what "merely colourable" is intended to mean.

The most highly qualified lawyer is not necessarily a well qualified draftsman. No matter how good a lawyer's qualifications are, he still requires a number of years training before he becomes a draftsman. For that reason there is a certain exclusiveness, supplied by words, that a humble lawyer like myself cannot assail.

May I refer generally to what the section purports to do? Subsection (1) provides that doing anything in relation to a substantial part of a work is the same as doing something in relation to the work as a whole. It continues a principle laid down in the 1927 Act which is the existing law in this country. In regard to subsection (2), I do not think I can satisfy the Senator with an explanation of what "colourable" means in this context. However, the subsection lists a number of acts which do not constitute publication for the purposes of the Act and it is again substantially as it is in existing law.

Subsection (b) says: "except in so far as it may constitute an infringement of copyright, or a contravention of any restriction imposed by Section 54 of this Act, a publication which is merely colourable, and not intended to satisfy the reasonable requirements of the public shall be disregarded." The phrase "not intended to satisfy the reasonable requirements of the public" is intended I think to be a definition of what "colourable" stands for in this Bill. I am afraid I cannot explain it further than that.

That is colourable enough.

If I may say so, that was my difficulty. I would have thought that it was a contradiction. I thought that a colourable publication was a recognisable one, something that would probably satisfy the public that it was a publication. Perhaps I am wrong, that colourable does not mean that, but I took colourable as meaning a reasonably fair copy. There seems to me to be an odd use of the word here.

I believe that it is intended to be a technical phrase and it could refer to a token publication. A colourable publication would be a token publication which would not be publication that would satisfy the public. Therefore, a token publication of a work first created would not be publication for the purpose of the Act. I think that is what the word "colourable" is intended to cover here.

I take it that as far as the Minister knows no difficulty has arisen about this under the other Act?

Some difficulty occurred in England, but not in this country since 1927.

Question put and agreed to.
Sections 4 to 9, inclusive, agreed to.
Question proposed: "That Section 10 stand part of the Bill."

On this section there is a point I can see, which may possibly be the intention. There is a reference in subsection (2) to the proprietor of a newspaper, magazine or similar periodical. This is repeated. Further down in the same subsection it says: "Insofar as it relates to publication in a newspaper, magazine or similar periodical". I am wondering what precisely this means. Does it mean that if an article is published in a newspaper the copyright in that as far as it relates to the publication in any other newspaper, magazine or periodical rests with the proprietor of the original newspaper, or does it mean in its second reference "the said newspaper"? I hope that the Minister will follow what I am getting at. To me as it stands it means that once a thing appears in a newspaper, magazine or periodical, publication in any newspaper, magazine or periodical rests with the proprietor of the original newspaper and not with the author. If that is the intention I am not going to quarrel with it. I do not know anything about copyright, but it struck me that the other meaning might be the one intended—that the reference to a newspaper, magazine or similar periodical is always to the same newspaper, magazine or periodical. If so the word "a" in the third reference should be deleted and it should be "the said newspaper, magazine or similar periodical".

I should like to suggest that the insertion of a couple of commas in subsection (4) in lines 23 and 24 would make it more readily understandable. The subsection says "where, in any case other than that mentioned either in subsection (2) or (3) of this section, a work is made in the course of the author's employment by another person under a contract of service or apprenticeship, that other person shall be entitled to any copyright subsisting therein..." and so on. I read that several times, and I believe it would be easier to understand if in line 2 of the subsection there were a comma after "made" and in the next line after "person" so that it would be clearly understandable that "in the course of the author's employment by another person" was in reference to the work made and not to what comes subsequently.

The purpose of subsection (2) of section 10 is, I think, fairly clear on the face of it. I am not suggesting that the Senator has not grasped what it intends to provide, but for the benefit of the House and in case some Senators have not adverted to it the meaning is that if a man working in a newspaper or journal in the course of his ordinary work creates some literary work which is published first in the newspaper, journal or magazine, then the copyright in the article or work vests in the proprietor of the newspaper, journal or magazine. Subsection (5) provides that an agreement between the author and his employer may provide to the contrary.

I am advised that the letter "a" to which the Senator has referred in line 11 is proper draftsmanship to achieve the purposes of the subsection. As far as the commas in subsection (4) are concerned, I am also advised that the good use of commas in drafting is the highest form of draftsmanship. Again, I am afraid that I cannot comment on the effect of the omission of commas here, except to assume that where commas are omitted in a place where they would appear required I believe that they are omitted for good reasons, and I do not think there is any reason for us to doubt the draftsmanship here.

I should like to say that I fully agree with the Minister's previous comments on Section 3 that the draftsman is a sort of superior lawyer. The trouble is that in interpretation in the courts the draftsmen are not there. It is ordinary lawyers who make judges and they may not be of the same standard.

Ordinary lawyers become judges.

Question put and agreed to.
Section 11 agreed to.
Question proposed: "That Section 12 stand part of the Bill."

I should like to say a few words about subsection (4) of this section. I would appeal very strongly to the Minister to reconsider this subsection which seems to make inroads into the rights of authors and playwrights without any corresponding benefit to the public. This subsection originally appeared in the 1911 Copyright Act and it was included also in the Industrial and Commercial Property Act, 1927. It now appears in this Bill, but with the words added "or in a broadcast". The previous form referred only to the reading or recitation in public of any reasonable extract from a published literary or dramatic work. We now have added to that provision enabling it to be done by means of a radio broadcast. This is a completely new provision. I know that in the Dáil the Minister quite rightly pointed out that under the existing law reasonable user might extend to broadcasting though the 1927 Act did not specifically refer to broadcasting. That is a matter we might argue about.

There was, undoubtedly, a case brought under the 1927 Act by Andre Messager, and one of the things decided in the King's Bench Division was that the words "in public" could be held to refer to broadcasting. That case was taken under a different section of the Act and different factors were involved. It is not necessarily certain that under this section the courts would have held that broadcasts were included. However, the point is that quite obviously at the time when this provision was first introduced in 1911 the legislators had not got broadcasts in mind. It is equally obvious that when these matters were being debated in the Dáil and Seanad it was not intended to include broadcasts either. So far as I know Radio Éireann have always gone on the basis that if an author's copyright were used his permission was asked and a fee was paid. In Britain the BBC took the same line until the provision was changed.

Therefore, we are now, for the first time, deciding as a matter of definite policy that the broadcasting authorities should be permitted to use extracts from plays or other literary works without getting the permission of the author or the playwright and without paying a fee. It is true that under this proposed subsection these extracts must be reasonable. Subsection (4) provides for the reading or recitation in public or in a broadcast by one person of any reasonable extract from a published literary or dramatic work. What is a "reasonable extract"? No one knows. So far as I have been able to find out that is a matter which has never been considered in any court in Britain or Ireland. We simply have no idea.

If the subsection becomes law as it stands, we may take it that sooner or later—and probably sooner—this matter will be decided by the courts. They will be asked what in their view is a "reasonable extract." The difficulty I see is that I can visualise a long succession of court cases because, normally speaking, if a court decides on a point that is the end of it, and the other courts feel themselves bound by that decision, but in this instance no court will be prepared to consider the word "reasonable" except in relation to the facts involved. Any time, therefore, an argument arises with the broadcasting authorities about this question, if an author is so unwise as to take his case to litigation it would involve a completely new set of proceedings to decide it.

The fact that no one—the Minister, or ourselves or the draftsmen—can have the slightest idea of what would be the meaning of a "reasonable extract" makes it difficult to know exactly what loss would be borne by the authors. Obviously there would be some loss. Until 1956 the law in England was much the same as it is here. In 1956 a new Copyright Act was passed in Britain which re-enacted the section about recitation and reading in public, adding the provision we have here, "accompanied by a sufficient acknowledgment." In this Bill that section has been copied exactly except that whereas in Britain they quite specifically exclude broadcasts we have specifically included them.

In the course of the discussions on the previous Bill the Minister said that, while it was not by any means a conclusive reason for doing anything, at the same time we might bear in mind a provision relating to whatever the matter might be was in a relevant British Act, and that while we were not bound to operate it, it was something they had decided, after due consideration. I suggest that applies here also. The British Act definitely excludes broadcasts. They have far more experience of copyright and broadcasting than we have, and for that reason I suggest we should exclude broadcasts. I have been unable to discover what benefit is gained by including broadcasts. The gain to Radio Éireann in the fees they would not have to pay would be so small in relation to their total resources that I do not think it would be noticeable at all.

The loss to the authors might be quite considerable. There may be authors who could afford that loss but there are many others who could not because their income from their writings is so small that the money they get from Radio Éireann makes a difference to them. Those authors stand to lose, but we do not know how much. It might be suggested that they benefit from the fact that their work is broadcast with due acknowledgement and that that is an advertisement for them, but the question of how much they benefit is doubtful. That raises another question which is more serious.

This power which is being given to broadcasting authorities to broadcast "reasonable extracts" without permission and without paying a fee will, of course, extend to sponsored programmes. I have nothing against sponsored programmes but I think that reputable authors should be in the position of being able to refuse to grant permission for the use of their works in the course of advertising programmes. Under this section as it stands, they will not be in that position. So far as "reasonable extracts" are concerned, if a commercial advertiser wishes to use portion of a poem, a play or a novel, in the course of a sponsored programme, so long as it is a "reasonable extract"—and I take it they would be short extracts in programmes of that kind—the position would appear to be that the author will have no redress whatever. I think that is quite wrong, and that it is one of the most undesirable aspects of the section.

After all, we have been broadcasting for nearly 40 years. Why do we want to make this change after nearly 40 years? So far as I know, there have not been any difficulties. I do not know whether the broadcasting authorities have been complaining, and I do not see why they should. In a Bill of this kind which is partly a tidying-up process, and partly a question of bringing old legislation up-to-date, it seems to me that we should make changes in the existing situation only because abuses have existed or because the change we are making is a definite improvement on the existing state of affairs.

There may have been abuses but I have never heard of them. I certainly do not think this is an improvement. I do not see who gains and I certainly think that some authors will lose quite a lot. In addition, this section is calculated to lead to a series of expensive and unnecessary pieces of litigation. It is very difficult to say what a "reasonable extract" is. I would ask the Minister to reconsider this matter and perhaps we could have an amendment on Report Stage to delete the words "or in a broadcast".

It is possible that we could delete the words "or in a broadcast" without taking away in the slightest from an authority like Radio Éireann their right to quote reasonable extracts from published literary or dramatic works as they do at present. What I am saying is that recitation or reading in public is very likely to cover recitation or reading by means of broadcasting and, therefore, I do not think it would help Senator Yeats's point of view in any degree if the words "or in a broadcast" were omitted. Assuming that the purpose of the insertion of the words "or in a broadcast" is to extend permission to Radio Éireann for this limited use of extracts from published literary or dramatic works, then I think it is not unreasonable.

After all, in this country we have only the Broadcasting Authority. The State has a certain interest in it. The Houses of the Oireachtas had certain intentions regarding the functions of the Broadcasting Authority and I think we do not have to worry that the Broadcasting Authority would imprudently take extracts from published literary or dramatic works. In any event, I do not think there would be any trouble about interpreting what a reasonable extract would be. The word "reasonable" appears in all kinds of legislation and even in common law the courts find little difficulty in interpreting the words "reasonable means". If we revert to Section 3, subsection (1) the following words are used: "Except in so far as the context otherwise requires, any reference in this Act to the doing of an act in relation to a work or other subject-matter shall be taken to include a reference to the doing of that act in relation to a substantial part thereof".

Therefore, taking the interpretation of Section 3 and the likely interpretation of "reasonable" as used in Section 12, I do not think there is any danger that any serious harm would be done to the copyright in a published literary or dramatic work by the use of these extracts by Radio Éireann. I note that the Senator may have some fears, if not about the Radio Éireann Authority, then about the promoters of sponsored programmes. But then I think Radio Éireann are somewhat in the position of publishers in this respect. It is through their medium that the broadcast is made, and even if they were not construed legally as the publisher and, therefore, responsible for infringement of copyright, in any event, they have control of the subject matter of their programmes. I would again suggest that there is not any degree of serious intrusion on copyright in this respect.

I do not think any difficulty has arisen, but, while British law specifically excludes broadcasts from the facility afforded by subsection (4) here, not to specifically mention broadcasts would not exclude them. One must remember that the BBC are a fairly wealthy corporation and have resources that Radio Éireann have not and can, therefore, expend the money, the time and staff, on making inquiries and contacts with authors and making agreements with them in advance. Radio Éireann have not these resources but I presume—in fact, I am reasonably certain—that if an author made a complaint that his copyright in a work was infringed by an unreasonable extract being used in a broadcast by Radio Éireann or one of the sponsored programme writers, then Radio Éireann would ensure that reasonable payment was made in respect of it.

Dealing, as we are here, with a single broadcasting body which is in the ultimate controlled by the State, I do not think there is any danger of flagrant breach of the rights conferred on authors by this Act. In any event, I think it is only fair and sometimes of benefit to the authors that extracts might be used that would excite interest in the work the author has published and, therefore, lead to greater sales of that work. I listened to many programmes on Radio Éireann, some of them sponsored, and I can assure the Senator if, before the performance was finished, the performer said: "I will arise and go now", I would pay the infringement cost myself. I think that the Senator's fears for which he put forward a certain amount of justification are not well grounded.

There is one point I want to make on the Minister's reply. First of all, Radio Éireann, of course, have not the resources of the BBC, but the Radio Éireann fees also are very much lower than those of the BBC.

I know, for example, when it comes to musical copyrights that Radio Éireann have refused to deal with persons who are not members of the Performing Rights Society or the Mechanical Rights Society. There is no problem there and I do not think there would be any problem there. Radio Éireann would normally be dealing with authors who were members of the Society of Authors.

With regard to the question of sponsored programmes, I do not think the Minister understood my point. I am not worried about the fees that would or would not be paid for the use of those works on the sponsored programme. My point is that the author should specify for himself whether he wishes his work to be used on the sponsored programme or not. I know that in the case of any copyright over which I might have control, if asked for permission for a work to be used in a sponsored programme, I would say "No".

In the case of newspapers, if the author's work is used without permission, he can do something about it. I have personal experience over the past year of a semi-State company which used a copyright work without permission in an advertisement, but it was possible to prevent them doing it again. The point I am making about a sponsored programme is that I think an author's work should not be used in the course of advertising without permission. I can well see that removal of the words "or in a broadcast" might still leave the matter vague. But the Minister might have adopted the British solution of the 1956 Act, and inserted a subsection specifically excluding broadcasting.

Maidir le craoladh ó Radio Éireann ar oibreacha údar agus oibreacha litearga, ón eolas atá agamsa ar Radio Éireann, tá a fhios agam go bhfuil siad an-chúramach, an-cheart i dtaobh na neithe sin agus go n-iarrann siad an cead roimh ré más eol dóibh cé leis an cóipcheart.

Tá ceist agam i dtaobh fógraíocht gnótha. Cad é an méid eolais roimh ré a bhíonn ag Radio Éireann, cad iad na neithe a úsáidfear i dteannta fógraíochta ag lucht gnótha agus earraí a dhíol? An ndeimhníonn siad roimh ré go mbíonn cead ag an gcomhlucht gnótha ón údar amhráin agus ceolta a sáid? Sin rud nach bhfuil aon chinnteacht agam air mar ní raibh baint agam riamh le h-aon rud den tsort sin.

Ní féidir liom freagra ceart a thúirt ar sin. Nílim cinnte ach measaim go ndéanann Radio Éireann deimhin de go bhfuil cead ag lucht fógraíochta an saothar a chraoladh. Muna bhfuil cead acu bíonn an cóipcheart ag an fear gur leis an obair. Tig leis siúd an dlí a chur ar an té a sháraigh an cóipcheart.

Tá ceist eile agam mar gheall ar an scéal sin. An bhfuil smacht ar bith ag Radio Éireann ar an gcineál stuif a chraolann lucht fógraíochta nó an féidir leo aon chosc a chur leo mar gheall ar rudaí dith-chéille a chur ar an aer?

Tá smacht ag Radio Éireann, ach is dóigh liom gurab é an rud is mó a bhíonn Radio Éireann imníoch faoi ná "good taste". Is dóigh liom go gclúdaíonn sé sin a lán rudaí.

Ní bhaineann an t-ábhar sin leis an mBille seo.

Question put and agreed to.
Sections 13 to 16, inclusive, agreed to.

I move amendment No. 1:

In subsection (4) (b), page 20, line 34, before "the payment" to insert "the consent of and".

I think amendments Nos. 1 and 2 can be discussed together. First of all, this is a very technical Bill, as Senators are aware. I think, in a technical Bill like this, the best we can do, as ordinary Senators, is to try to take a reasonable look at what is in the Bill and judge whether what is being provided is reasonable and fair in all the circumstances. What I am concerned about in my two amendments is the question of sound recordings.

First of all, we are providing in Section 17 that a copyright shall subsist in the owner, the manufacturer of the records, and then we go on and tear the guts out of that. What I am objecting to is the provision in subsection (4) which amounts, in effect, to the confiscation of the copyright of the recording. We are saying here that the recording can be produced in public. It can be broadcast; it can be put through a diffusion service, provided that the person doing that pays equitable remuneration to the owner of the copyright. Then we go on to provide that where there is a dispute in regard to equitable remuneration that that should be decided by the Controller.

What I am suggesting in the amendments is that the owner of the copyright should be in the same position as the owner of any property to say whether or not he will allow the use of the recording. If he does not, of course, that is his own funeral. Presumably he would not get any payment. Radio Éireann, a diffusion service, or, indeed, any person can use that recording in public without the permission of the owners of the copyright, provided, of course, that later on they come along and make an equitable claim. They can do that first without coming to any arrangement with the owner of the copyright.

I object to that. I do not know how the Oireachtas could say that, in effect, it is property, this ownership of the copyright and, in effect, that it can be confiscated, and that later on somebody can determine what is an equitable compensation or remuneration for the confiscation. We are, as I said, at the start of the section, providing that the copyright shall subsist in the owner of the recording. If it subsists in him, in other words he owns it, and he should be in a position to trade it, sell it, or do what he likes with it. We are now allowing it, as I see by subsection (4), to be broadcast, used to entertain the public, put through a diffusion service, without the permission, without the authority and without any negotiation whatever with the owner of the copyright. That is wrong and ridiculous.

I must confess, of course, that my heart is not bleeding for the owner of the record. Senators may not be surprised at that. What I am concerned about is the continued employment, the value of the employment and the value of the capabilities of the artists who put their capacity into the actual recording. If that recording can be used for broadcasting and for public entertainment, without the value of that being negotiable with the owner, I think the worth of the original performance put on to the record is less than it would otherwise be. It could be allowed to interfere with the continued employment of these musicians and these artists who consent to make a recording.

Before a recording is broadcast, before it is used for the purpose of entertaining the public, before it is put through a diffusion service—if we ever have one—the authority of the owner of the copyright should be secured. I do not think that is unreasonable. It is all right to say that by making a recording, by offering it for sale to the public, you are in a sense putting it out and making it broadcast. You are making the records available for purchase normally for private entertainment, for the private use of the entertainer. For instance, you publish a book. A person comes along, buys that book and he can read it and enjoy it himself. He is not allowed to copy that book and distribute it—to broadcast it.

A library can.

A library can do it but that is different. A record library, I think, can do it. There are such things as library records. I am not interfering with that: it is a completely different matter from broadcasting something, from using it for public entertainment. The Minister in dealing with these amendments, I think, in the Dáil thought—if I may attempt to interpret him—that it would be unreasonable that the owner of a recording should be in a position to refuse permission to have it broadcast. I do not think so. I think the other side of the coin is unreasonable. It is unreasonable to say that no matter what the wishes of the owner of the copyright are you can broadcast it, you can use it for public entertainment without his authority and without his agreeing on a price, and later on you can come along and say: "We will pay you something and if there is a dispute about what that something should be the Controller will settle it." As Senator Yeats said on a previous section, the owner of the copyright may not wish to have it used like this at all. He may not wish to have it used in a certain programme, for example, a sponsored programme. I do not know whether the Minister ever sang a song or had it recorded down with Glen Rovers——

You need not have any worry about infringing copyright if I did.

You might not like to hear it broadcast on one of those sponsored programmes. It might be very embarrassing, but whether it is or not the point is that the owner of the copyright has the right to say what he will or will not do with it, and if he does not want it used in a broadcast, it may be unreasonable for him and he may have an objection to which we will not see any point, but he, as the owner of that copyright, should be allowed to retain the control of it. As I said at the start, this is a technical Bill. I would hope that Senators would look reasonably at the problem created here and approach it as reasonable people. I hope they will agree with me that it is quite right that we should put in a provision that before a recording would be broadcast or used for public entertainment the consent of the owner of that recording should be secured.

I wish to support this amendment and before saying anything further about it I think I would be in order in suggesting that the House should be grateful to Senator Murphy for directing our attention to a very important aspect of this Bill. Senator Murphy began his remarks by pointing out that the Bill was highly technical and we have good reason to know that is only too true. I do not consider myself competent to prosecute this section as fully and capably as the mover of the amendment has done. One thing I am assured of is that the amendment is eminently reasonable and I believe commends itself to every member of the House. It is obvious that a vital right is involved in this section. I do suggest that the House owes it, in fact, to the people whom we speak for here to make quite certain that that right is very fully preserved. I do not think anybody could quarrel with the suggestion that the owner of a copyright of this type should at least have the option of deciding where his work should be performed and in what circumstances or under what conditions. I do not for a moment agree with the suggestion in the Bill that the owner of the copyright is adequately remunerated by payment subsequently of a fee which may or may not be open to arbitration at a later date. The important thing we have to remember is that the amendment asks simply no more or no less than that the consent and approval of the owner should be sought before the work is performed in a given circumstance. It is equally important that he should likewise have preserved his freedom to withhold his consent if he so wishes. Without belabouring the point any further, since I think that the case has already been made from the other side of the House, I commend the the amendment to the House.

Since I have been quoted so much in this regard perhaps I should say simply that I am afraid that this amendment appears to me to be aimed in the wrong direction altogether. The position is not really on all fours with the discussion we had earlier, since the owner of copyright in records is generally the company that manufactures the records and I take it that their position would be entirely different to that of an author. The author's claim is to be able to withhold or give permission. I never heard of a record company proclaiming any such right or wanting to. I think I am right in saying that a record company is only too pleased if its records are broadcast. The wider the broadcast the better from their point of view. It is extremely unlikely, I think, that the owner would have such a privilege, because in each case, of course, the radio station before broadcasting such a record might write off to the company and ask: "May we broadcast this record?" From the point of view of the company it would be an undesirable position. They would be delighted with it as it stands, for this is quite unlike the other point we discussed earlier.

Maidir le cóipcheart litearga agus cóipcheart an cheoil seo go bhfuilimid ag trácht anois ortha, tá a fhios agam go bhfuil saghas éigin caoi ann chun an cóipcheart litearga a chosaint i gcónaí ach fé mar adúirt mé an lá fé dheireadh a bhí mé anso is deacair ar fad an ní eile a chur i bhfeidhm. Maidir le leabhar a chuirtí i gcló nó aiste a chuirfí i gcló níl aon cheart ag an údar cosc a chur ar éinne é a léamh in aon áit.

Maidir le ceol, táthar ag iarraidh go mbeadh cosc ar é sheinm in áiteanna áirithe nó cead an údair d'fháil sul a seintear é. Tá deifríocht mhór idir an dá rud. Agus tá an rud eile i gceist— gurab iad foilsitheoirí na dtaifeadán de ghná go mbíonn smacht acu ar úsáid, díolaíocht agus forleathnú na dtaifeadán a chuireann siad ar fáil.

Tá rud eile i gceist agus níor luadhadh fós é. Is é go bhféadfaí taifeadáin a úsáid in, abair, halla rince in ionad buíonta ceoil. Is dóigh liom gurab í sin an cheist chrosta agus an pointe deacair atá san argóint seo ach níor luadhadh é sin fós. Sin é an rud atá i gceist agamsa. Tá an-chuid deifríochta idir an dá rud agus is deacair bheith ag iarraidh go bhféadfadh an t-údar cosc a chur le taifeadáin dá chuid ceoil a úsáid in aon áit. Bheadh sé deacair dó an smacht sin a chur i bhfeidhm. Tuigim má chuirtear ar siúl iad go mbeadh an ceart aige díolaíocht d'fháil nó an foilsitheoir díolaíocht d'fháil.

Tá pointe eile i gceist agam leis. I bhfó-alt (2), Alt 17 tá na focail seo a leanas: "Until the end of the period of 50 years from the end of the year in which the recording is first published." Ní h-é sin an rial atá ann maidir le rudaí litearga ná ní h-é sin an rial a bhí ann go dtí so ach "50 years" tar éis bháis an údair. Tá an deifríocht sin sa scéal leis agus ní fheadar an bhfuil aon chúis leis an athrú sin? Seo iad na focail atá i bhfó-alt (2), línte 16, 17 agus 18: "Copyright shall continue to subsist until the end of the period of 50 years from the end of the year in which the recording is first published." Agus is é an rud litearga ann ná "50 years" tar éis bháis an údair. An bhfuil aon chúis leis sin?

Ligtear dom freagra a thúirt ar an Seabhach maidir leis an gceist dheireanach. Baineann an fó-alt leis an dtaifeadán amháin; ní bhaineann sé leis an obair sa taifeadán.

Is mar a chéile iad.

Ní h-ea sa bhfó-alt.

With regard to the two amendments, subsection (4) sets out what copyright in sound recordings consist of. It is the right, first of all, to prevent others from making a recording of the record itself. Where a recording has not been published, there is also the right to prevent that record from being played in public and from being broadcast. If the record has been published, there is a right to equitable remuneration if it is played in public or broadcast. Therefore, there are three categories, and we are dealing with the third.

Once a record is made and put on sale, the purport of the Senator's amendment is that before it can be used in a broadcast, the Broadcasting Authority should not only be responsible for payment of a just remuneration, but should seek out the owner of the copyright, who is the recording company or the person who commissioned the record, and get that company's or that person's consent to have it played. I think it is not unreasonable to assume it would impose a very great burden on any broadcasting authority to have to seek out the owner of a record every time it was played.

As I said on the last occasion, the person who makes the record, irrespective of those who contributed to the subject matter, puts it on sale, and offers it for public purchase to those who pay whatever the cost of the record is. If a person buys a record and plays it in his own house or for his friends without receiving payment, he is entitled to play it until the needle goes through the disc if he wants to, but if he wants to play it in circumstances in which the people who hear it pay him some money, then it is only just that, since he is making a profit in one way or another, he should pay a reasonable royalty to the owner of the copyright in the record. I think that to try to go beyond that would put a very great burden on the person who uses the record, and would limit the right of the public to hear a record beyond what I think is reasonable.

It is necessary to keep the purpose of the Bill as a whole in mind. The purpose of the Bill is to protect and define property rights, and the property right we are now dealing with is copyright. In the case of sound recordings, the copyright is vested in the person who makes the recording. Sound recordings together with films and broadcasts are included as subject matters in this part of the Bill. This part deals with subject matters apart from original literary, dramatic or musical works, and the purpose of the section is to set out for each of those what the scope of the right to protection should be.

It is true that in the existing law records were given copyright as if they were musical works; in other words, they were protected as intellectual works. This Bill for the first time deals with recordings in their own right, and they may be recordings of any literary, musical or dramatic works. The question of what right should be attached to recordings, including records of music which are issued to the public by the gramophone companies, has been the subject of investigation by many organisations including—which will appeal to Senator Murphy—the ILO. The International Labour Office when concerning themselves with this subject, again like Senator Murphy, did not bleed for the gramophone companies, but rather intervened to protect the rights of the performers and the musicians, or whoever contributed to the making of the record.

In 1961, eventually, after several years of examination of the subject, an international Convention was signed, to which the International Labour Office was a party. That Convention dealt with the protection that would be given to the performers and the producers of the recordings—or the phonograms, as they were called in the Convention—and the broadcasting authorities. In the matter of sound recordings, the Convention required all States which were prepared to adopt its full provisions on the subject, to accept that record producers should have the right over the copying of the records and that there should be payment to the performers or the manufacturers, or both, when the records were played in public, or broadcast.

As I said on the last occasion, in their contracts with the record makers, the performers could provide for adequate payment in the knowledge of the places in which the records are to be played.

That Convention was signed on behalf of Ireland and the enactment of this Bill gives effect to the Convention in this respect. As I said on the last day, there will be a separate Bill dealing with the rights of performers, but in saying that, I am not suggesting that we could take care of the interests Senator Murphy has at heart in this new Bill without the performers themselves taking care of their own interests when making the recordings. The point is simply that we are a party to an international Convention which has defined the rights of performers and record makers. The International Labour Office were a party to the drawing up of the Convention and in doing so, it must be presumed that they had the rights of the performers primarily at heart. We are doing no more in this section than giving effect to and adopting that Convention.

I think that in all the circumstances the House will agree that the requirement in the amendment to get the consent of the manufacturer of the record in each case in which payment is involved would be onerous and that the provisions in the Bill and the Convention are adequate to safeguard the interests of the makers of the records.

I thank the Minister for his very full reply. He probably brought us down to earth by his reference to the fact that the performers must look after their own interests, too. Am I correct in imagining that this could be the position? Suppose you have a dance band called "The Limpets". They earn their livelihood playing at dances round the country and would also make some recordings, if they were good enough. The position could arise under the section we are asked to pass now that a dancehall proprietor down the country, asked to provide a dance band, could provide "The Limpets" through the medium of records already made by them and they have no come-back at all. Their livelihood will be seriously interfered with. That, I think under my reading of the section, could happen and "The Limpets" could of course get some compensation for it eventually but they would be unable to prevent this thing happening, which would be clearly and very much against their interests. The same could happen with other artists — say, Delia Gallagher if she made any records. A concert promoter could provide a night with Delia Gallagher and her songs. Her livelihood could again be seriously interfered with. Is that or is it not the position? From my reading of the section, that could happen, as we are asked to pass it here.

I do not think the question of the broadcasting is too important. I could very well envisage a situation where the artists, the performers who make the recording, would be very prone to object to that record being broadcast, although I imagine it may be thought to be in their interest. The other aspect, the playing of those records in public for public entertainment—their playing at dances—would be dead against the interests of the performers who made the records originally. I presume if this amendment were accepted what would happen is that these performers in making a record would make some provision with the owner of the copyright, would make some agreement with him that he would not, because of his ownership of the copyright, consent to those records being played in public without consent. That is all we are asking. I think it very reasonable and I am pressing the amendment.

I understand the Minister to say that it would place a heavy burden on the broadcasting authority to get the consent of the copyright owner. I do not think that is a good case against the amendment. All the amendment asks is to get in the word "consent" and if you object to the word "consent" because it will involve a burden for somebody, the first person who should be considered is the performer, the copyright owner. It is his property and he should be the person to decide what is in his best interests. That is reasonably accepted in relation to any property. He will not be difficult, because he is involved and his future is involved in a number of cases. Perhaps it is a source of his employment. It may be the only source of his employment and he is entitled to be safeguarded. It may appear a bit burdensome but it is most important to get his consent.

There is another point, too. It is quite obvious, where there is complete freedom to use the records, even where there are no charges by houses of entertainment, it might be done in such manner that the overall cost might be recouped in another way. That again would affect the copyright. The owner may, perhaps, prior to that have been engaged personally with his colleagues in giving the entertainment which the records give later on. That is another aspect that has to be considered. Those points are important where the individual is concerned. I fail to see how there can be any objection to putting it in such a way so that the copyright and performer will be safeguarded.

May I say in reply to that that the copyright does not rest at all in the performer but in the person who made the record or on whose behalf the record was made, but modern trends seem to indicate that the more a record is taking, the more popular the person making that record becomes. We have the scores of pop singers and dance bands all over the country and all over the world and the playing of their records tends to make the performers more and more popular and tends, therefore, more and more to their employability.

We will now have the new law and it needs only somebody with brains to exploit it and put the ordinary small bands out of business. Probably it would be much more entertaining and more impressive to have records down the country than the normal three- or four-piece bands, but these people will be put out of employment.

Go to a dance down the country.

It all depends on the record. If we played yours for the past 20 years, we would have a good one.

Amendment put.
The Committee divided: Tá, 16; Níl, 28.

  • Carton, Victor.
  • Crowley, Patrick.
  • Davidson, Mary F.
  • Desmond, Cornelius.
  • Dooge, James C.I.
  • Fitzgerald, John.
  • Fitzpatrick, Thomas J.
  • Hayes, Michael.
  • L'Estrange, Gerald.
  • McAuliffe, Timothy.
  • McDonald, Charles.
  • Mannion, John.
  • Murphy, Dominick F.
  • Ó Conalláin, Dónall.
  • Quigley, Joseph.
  • Sheldon, William A.W.


  • Ahern, Liam.
  • Boland, Gerald.
  • Brady, Seán.
  • Brennan, John J.
  • Browne, Seán.
  • Cole, John C.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Hayes, Seán.
  • Healy, Augustine A.
  • Hogan, Daniel.
  • Killilea, Mark.
  • Lahiffe, Robert.
  • McGlinchey, Bernard.
  • Nash, John Joseph.
  • Nolan, Thomas.
  • Ó Ciosáin, Éamon.
  • Ó Donnabháin, Seán.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick.
  • Ó Siochfhradha, Pádraig.
  • O'Sullivan, Ted.
  • Ruane, Thomas.
  • Ryan, Eoin.
  • Ryan, Patrick W.
  • Ryan, William.
  • Yeats, Michael.
Tellers:— Tá: Senators Crowley and Murphy; Níl: Senators Ó Donnabháin and Farrell.
Amendment declared lost.

Amendment No. 2 is consequential.

Amendment No. 2 not moved.
Business suspended at 6.15 p.m. and resumed at 7.15 p.m.