Seanad Éireann debate -
Wednesday, 8 May 1968

Vol. 64 No. 15

Performers' Protection Bill, 1968: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Industry and Commerce (Mr. Colley)

An International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations was concluded at Rome in October, 1961. Ireland was represented at the Conference which drafted the Convention, which was held under the auspices of the United Nations Educational, Scientific and Cultural Organisation, the International Labour Office and the Bureau of the International Union for the Protection of Literary and Artistic Works. The Convention was signed by 36 countries, including Ireland. In accordance with the provisions of Article 25, the Convention entered into force on 18th May, 1964, following ratification by six countries, one of which was Britain.

The provisions of the Copyright Act, 1963 which came into operation on the 1st October, 1964, meet those requirements of the Convention relating to Producers of Phonograms and Broadcasting Organisations, but there is no provision in this country for the specific protection of performers. This Bill is designed to meet the Convention's requirements relating to performers and to enable us to ratify the Convention.

Article 4 sets out a basic feature of the Convention in requiring each contracting State to grant national treatment—the same treatment as is given to nationals of the State — to performers whose performance takes place in another contracting State or is incorporated in a phonogram or a broadcast made or published in or broadcast from that other contracting State. Section 12 of the Bill will enable the Government to satisfy this requirement.

Certain acts in relation to performances which would infringe the performers' rights or would be contrary to their interests are set out in Article 7 of the Convention and the article requires that the protection to be given to performers shall include the possibility of preventing these acts. It is not proposed to create a property right in a performance in the nature of a copyright, which a performer could enforce by civil action or which he might assign for enforcement to any group such as a performers' union. It is proposed to meet the requirements of Article 7 in sections 2, 3 and 5 of the Bill. The proposals in those sections provide for protection of performers by making it a penal offence to do certain acts in relation to performances. It will, for instance, be an offence, punishable by fine on summary conviction or conviction on indictment to make a record or a film of a performance, without the consent of the performer, to sell or hire such a record or film, or to use it for the purpose of giving a public performance.

Article 12 of the Convention provides that where commercial records are used for broadcasting purposes or for public performance, the user shall make a payment to the performers or the producers of the records or both. Under the provisions of the Copyright Act, 1963, payment is required to be made by the broadcasters or users to the owners of copyright in sound recordings, that is to the producers of records, when their records are broadcast or used for public performance. Accordingly, our law already complies with Article 12 of the Convention. It is understood that, under an agreement made between the recording companies and the various performers' unions, a percentage of the money which these companies receive for this use of their records is paid over to the performers' unions for the benefit of their members. The proposals in the present Bill will not interfere with this arrangement.

This initiation of proceedings under the Act will be the responsibility of the person aggrieved.

I recommend the Bill for the approval of the House.

Mr. McDonald

We on this side of the House welcome this Bill because we believe that the entertainment and the record industry in particular is very big business now and we feel that our artists and performers should have the utmost protection especially in view of the fact that the State has signed the documents relative to the Rome Convention, 1961.

However, there are one or two points which the Minister might clarify for me. Under subsection (4) of section 3 there is provision for Telefís Éireann being fined fines ranging from £100 to £2,000. I believe that to an organisation like Telefís Éireann £100 is little or nothing. It is just like a drop in the ocean. I should like to ask the Minister would it not be better if members of the Authority were made to pay those fines or if the fines were levied on the specific officer or servant responsible. I do not think that a fine of £100 to a big outfit like Radio Telefís Éireann would be any deterrent to not complying with the provisions of this Bill and the provisions of the Rome Treaty. There are a few other points but, perhaps, the Minister could deal with them on Committee Stage.

Mr. Murphy

I welcome this Bill in so far as it affects members of trade unions in this country. Those people and those unions are happy that the Bill is at last going through. I will be requesting the Minister to look at certain aspects of it between now and Committee Stage.

Having said that the Bill is welcome, I want to query why have we had to wait until 1968 for legislation to bring our law into line with a Convention signed in October, 1961. October, 1961, is nearly seven years ago and I am very puzzled by the length of time that has elapsed between this matter being thoroughly ventilated and discussed at an international convention, at which I presume this country was represented, made its views known and contributed to the eventual agreement and the Bill being introduced. We have had to wait nearly seven years to have our law brought into line with that Convention. I simply cannot understand why such a long time should elapse and I think this is also the view of the unions concerned whose members are involved in these sort of arrangements.

We had the Copyright Act in 1964 and at that time I remember raising what needed to be done to extend our legislation to fully comply with the Convention of 1961 if my memory is not at fault. We are now getting this Bill in the so-called summer of 1968. The Bill is necessary. It meets the requirements generally of the trade unions whose members are involved and as such it is welcome. I should like the Minister in replying to the debate to attempt some explanation as to why this long period has elapsed between the signing of the convention and the appearance of the Bill before the Houses of the Oireachtas.

Tomás Ó Maoláin

There must have been an unofficial strike somewhere.

Mr. Yeats

I should also like to welcome the Bill. It is quite clear that it is badly needed as the Minister has said. Until now performers in Ireland had no rights in relation to the reproduction of their performances. Under this Bill they will have.

Having welcomed the Bill, there are one or two matters I should like the Minister to elucidate for me. The first is a query in relation to the circumstances under which Radio Telefís Éireann are entitled to make recordings. The basic proposition laid down in the Bill is clear enough. If a performer has agreed to do a broadcast on radio or television, then Radio Éireann for the purpose of that broadcast can make a recording. The Bill further provides that unless the performer agrees, that recording must be destroyed within the six months. Where the recording concerned is of purely documentary value, then it can be kept for a longer period, in fact, permanently, with, again, the provision that it cannot be used for further broadcasting without the consent of the performer. There are certain exceptions to this. With regard to further recordings the exceptions are laid down in subparagraph (b) of subsection (3) of section 2 and I confess I do not understand what those relate to. As I understand it, there are certain circumstances under which Radio Telefís Éireann are empowered to make a record which has been made by some other organisation. This is allowed under various headings providing rebroadcast was not made for a purpose other than that for which the original performance was made. I am not quite sure what was intended here and I should like some elucidation with regard to it.

There is a further provision which worries me a good deal more and that is about making copies of films. This is in subparagraph (b) of subsection (3) of section 3. If I understand this correctly, it would appear to me that Radio Telefís Éireann can make a copy of a film which has been made by somebody else and that then those copies could be made available without the consent of the person who made the original film. This appears to be a blanket consent to Radio Telefís Éireann to make those films and to use them. I should like to have some elucidation in regard to what this means and also what is its purpose.

Section 6 strikes me as reading rather oddly.

A consent to the broadcasting of a performance shall, unless the consent provides otherwise, be deemed to include consent to the rebroadcasting of the performance.

The word "rebroadcasting" as defined in the definition section means the simultaneous broadcast by one broadcasting organisation of a broadcast of another broadcasting organisation. This could mean that television networks other than Radio Telefís Éireann could transmit those broadcasts. They could be done through Eurovision or other networks outside Europe and they could be done without the consent of the performer. I should explain straightaway that I am well aware that this is a practice with which Radio Telefís Éireann and, in fact, the unions are concerned. Equity and the Federation of Musicians have an arrangement whereby for each extra broadcast a certain percentage of the fees would be given to the performer and in cases where the performers are not members of any particular union Radio Telefís Éireann pays similar increases. This being so, I cannot see the point of inserting in the Bill what amounts to almost a commission to Radio Telefís Éireann to violate all those arrangements which have been going on very satisfactorily for a number of years.

I can see that Radio Telefís Éireann might be in a difficulty in regard to this. They cannot always know before the contract has been signed that it is proposed by certain other countries to take the broadcast on Eurovision or through some other arrangement. However, I should have thought that it would be a simple matter to put into every contract in small print somewhere a provision that in the event of any other network taking a broadcast a certain amount of fees should be paid and then anyone who signed this contract would have agreed to this being done. There may be some reason I do not know about but on the face of it I cannot see the point at all of this section. I should have thought the Bill would have been just as satisfactory and, indeed, more than satisfactory without this section.

Another point on which I should like some elucidation is in regard to section 9, subsection (b). This relates to defence in court proceedings. Subparagraph (b) states:

It shall be a defence to prove that the inclusion of the performance in the record, cinematograph film, broadcast or communication to the public to which the charge relates was only by way of background or was otherwise only incidental to the principle matters comprised or represented in the record, film, broadcast or communication to the public.

I think the work "principle" in line 5 is misspelt. It should be "principal". I suspect that this goes rather further than is meant. I can quite see that if someone was making a film and there was a crowd scene it would be ridiculous to say that you should pay everyone who happened to spend a fleeting moment on the screen and get permission from them to make the film. I have a feeling it could cover a case where music was used as background to a particular film without the permission of the performer. I may be wrong but it seems to me that the section is worded more widely than is necessary. On the face of it, it seems that it could lead to a wide variety of means by which background music is used, and should not be allowed in a Bill of this kind, without the permission of the performer. The Bill is quite obviously a very considerable advance on the situation at the moment and I think we should all welcome it.

Mr. Garret FitzGerald

There is just one aspect of the Bill I am not too happy about. The Bill makes it illegal, if I understand it correctly, to make a record directly or indirectly by means of a performance without permission in writing of the performers. It is quite common practice nowadays with tape recorders freely available to teenagers and others that they frequently make records for their own use privately and then play them back before they go out of fashion quite quickly. This is a perfectly innocent thing. I am not quite satisfied that the way to handle this is the way it is being done in the Bill.

It seems quite wrong to me that this innocent practice should be dealt with by making it illegal and putting the onus that it was an innocent thing on the innocent party to prove it was made for purely domestic use. I do not think we should put that into our legislation in this country. Since that kind of recording is not done for any commercial purpose, I do not think it should be dealt with in this way by making it illegal and punishable either by criminal proceedings or civil proceedings. This is an innocent pastime which is carried on by those people. The onus is put on the people concerned to prove that it was innocent. We should direct our attention to the clause which is of so penal a character that it is quite inappropriate in legislation in a country like this. We should try to reverse that and avoid getting ourselves into that position. This is something which I will take up on Committee Stage. I mentioned it here because it is a thing I am concerned about.

I am not quite clear about the significance of the Radio Telefís Éireann exemptions. I do not fully understand the situation where performers have consented in writing to a recording but they have not consented in writing to this being recorded for the purpose of being broadcast. This seems to be a rather unusual state of affairs. It may be normal practice, but I would have thought that if Radio Telefís Éireann would have got the consent of performers to the broadcast of a performance which must be recorded before being broadcast they would not have objection to it being recorded. I do not, perhaps, understand properly the process by which this is carried through or what is contemplated in the Bill, and I think that the Minister should explain a little further, as I presume that there may be good reasons but they are not immediately evident on first sight. I appreciate that some broadcasts are live, but that is a different matter altogether. If the suggestion is that people who consent to give a broadcast and then have it recorded are not being given an indication of when it is broadcast and then it is done without their consent, this seems a very dubious practice, but the Minister no doubt will clarify this matter and it can be taken up on Committee Stage.

In section 5 again I find it difficult to see what is contemplated here. This contemplates the case where a person otherwise than by the use of a record, cinematograph film or broadcast, knowingly broadcasts or makes a communication to the public of a performance. If he does not do it by the use of a record, a cinematograph film or the reception of a broadcast how does he do it? I am sure that there is a simple explanation but it does not strike me. If this performance is being given, unless you record it or receive it on a broadcast and then retransmit it in some way, I do not see how you are knowingly making a communication of the performance.

Mr. Yeats

It must be live.

Mr. Garret FitzGerald

But it says "otherwise than by way of receiving a broadcast".

Mr. Yeats

He could be transmitting the recording live.

Mr. Garret FitzGerald

Would that not be by reception of a broadcast?

Acting Chairman

Perhaps Senator Yeats would leave it to the Minister to explain.

Mr. Garret FitzGerald

I can understand and sympathise with Senator Yeats that it is irritating when you understand something that other people do not, but I would agree that, perhaps, what the Chair suggests is a more orderly way of doing it. I would like some explanation of what is envisaged in this. Perhaps, I have not thought the matter out. Perhaps, the Minister would tell us. I am also a little bit unhappy, though I do not want to stress this point, about section 9.

Tomás Ó Maoláin

I do not like to have you unhappy.

Mr. Garret FitzGerald

I should say I am slightly disturbed.

Tomás Ó Maoláin

That is better.

Mr. Garret FitzGerald

In section 9 the use of the word "background" is unsatisfactory and it is used in a manner which is not defined. Even accepting the misspelling of the word "principle", which will be corrected, I presume, on Committee Stage, we need more definition of the phrase "only incidental to the principal matters comprised or represented in the record, film, broadcast or communication to the public". This is a point of pretty wide interpretation of what is incidental to a broadcast. Is it adequately defined? Should we try to deal with it more closely on Committee Stage?

In the Minister's remarks he referred to the arrangements for payments to performers in respect of performances. I wonder if he would tell us something about how these arrangements are made? Is the suggestion that the amount is left entirely to the performer or is it something over which he has no effective control? If Radio Telefís Éireann broadcast a recording is the position that what they pay is a matter for the performer to decide or can they just decide what the payment can be? I wonder if the Minister would explain this payment mechanism, because to those of us who are not familiar with it it is a bit of a puzzle to see how it works and if it is relevant to the general purpose of the Bill.

Mr. Colley

I think it is pretty obvious that virtually all the points which were raised on this Bill are really Committee Stage points and could be dealt with more adequately on Committee Stage. I do not think that it would be either appropriate or possible for me to deal with most of these points at this stage. Perhaps, I might say for the interest of the House, and the House may agree with this comment, that when the corresponding Bill was being introduced in the British House of Lords by Lord Mancroft he said, and I quote: "This Bill is dull, technical, complicated and by general consent, largely incomprehensible. It has, however, the compensatory merit of being both short and good."

Mr. Garret FitzGerald

They did not have Senator Yeats, so it was incomprehensible.

Mr. Colley

Those remarks could apply equally well to this Bill. Most of the points raised are ones that could more appropriately be dealt with on Committee Stage, some of them because I would have to go into too much detail on some things, and others, quite frankly, because I would have to check on my brief myself to answer them.

Mr. Garret FitzGerald

That is very fair.

Mr. Colley

There was a point raised about the delay which occurred in introducing this Bill. Senator Murphy, I think, it was who raised this. He will recall that the Bill had been introduced before but it lapsed on the dissolution of the Houses of the Oireachtas.

Mr. Garret FitzGerald

We hope that this does not presage another general election.

Mr. Colley

You never know.

Mr. Garret FitzGerald

The first harbinger of spring?

Mr. Colley

After that, further thought was given to the matter and very detailed and protracted negotiations took place both with Radio Telefís Éireann and with the representatives of the performers. I think that it is pretty clear from even a casual perusal of the Bill that it is a very technical Bill and that the negotiations which were necessary to lead to the drafting of the Bill in conformity with the wishes of the parties concerned and at the same time in conformity with the Convention to which we wished to adhere were such as to delay the Bill for a very considerable time.

The question of the amount of the fine which should be imposed in the event of a breach of the provisions of this Bill by Radio Telefís Éireann was raised by Senator McDonald. All I can say is that the first offence to which he referred is a relatively minor one, and that is why the fine involved is £100, but the next subsection provides for more important and serious offences and there the figure is £2,000. I would agree with him that in the event of any serious offence a fine of £100 in the case of Radio Telefís Éireann would not be effective. On the whole, the Bill does endeavour to strike the right balance considering that we are dealing with a State body which is likely to and should be presumed to want to conform to the provisions of the Act and which if it does not is liable to be very quickly exposed. Having regard to that matter on the one hand, and on the other hand leaving it free to do what it likes in small cases, I think we have endeavoured to strike the right balance between those two in arriving at the penalties prescribed in the case of Radio Telefís Éireann.

I should also say, perhaps, in regard to some of the remarks made by Senator Yeats, that a number of these provisions are not merely to deal with Radio Telefís Éireann, but also they are necessary notes to conform to the Convention and it is more a question of RTE having to conform to them than the Bill to have to conform to the requirements of RTE.

At this stage I think I shall deal only with the general principles in the Bill, the necessity for it and the necessity for adhering to the Convention and I, therefore, propose to deal with the more detailed points which have been raised on Committee Stage.

Question put and agreed to.

Committee Stage ordered for Wednesday, 15th May, 1968.

Business suspended at 5.55 p.m. and resumed at 7.15 p.m.