Seanad Éireann debate -
Wednesday, 5 Jun 1968

Vol. 65 No. 2

Performers' Protection Bill, 1968: Committee Stage.

Question proposed: "That section I stand part of the Bill".

Mr. Yeats

I have one or two queries on the various definitions in this section. Perhaps the Minister could enlighten me on this. First of all, in regard to performance, I should like to have some idea as to what limitations there are on the various performances which come under this heading in the Bill. In this section the definition of performance reads:

Performance means a performance of any actors, singers, musicians, dancers or other persons who act, sing, deliver, declaim, play in or otherwise perform literary, dramatic, musical or artistic works.

With regard to the people who take part in those activities, I think the field there is quite unlimited. You have actors, singers, musicians, and so on and other persons who act, sing or otherwise perform. That covers every conceivable thing that you can conceive. The limitation here would be very wide but with regard to the type of performance that is covered it could be much more limited. I wonder what the limitations are and why it has been necessary to limit them in that way. For example, a comedian it seems to me would probably not be covered. He might not be intended to be covered but I am not quite sure why. In a circus you would have lion tamers and other performers but I do not think they would be covered. I am not even quite sure about pop singers because they are clearly not literary, dramatic or artistic, and one wonders whether they are even musical. This would be a matter of opinion but at any rate it is clear there are limitations here. As I say, I should be interested to know what they are and why?

Minister for Industry and Commerce (Mr. Colley)

The definition here generally keeps to the terms of the international Convention to which we wish to subscribe on the passage of this Bill. The interpretation of the points raised by Senator Yeats will, of course, ultimately be a matter for the courts. For what it is worth my own opinion would be that a comedian would be included but that is merely my personal opinion on the basis that if his work were not dramatic it should at least be artistic. The definition here is conforming to the terms of the Convention.

Mr. Yeats

I suspect that if this question arose in court the terms of the Convention would cause problems. There is one other query which is of a highly technical nature which I should like to ask. The Bill arrives at a definition as between performance and performers. At the end it says:

and includes any such performance rendered or intended to be rendered audible or visible by mechanical or electrical means.

I have no idea of what making a recording by mechanical and making it by electrical means means. Presumably there is something in it or it would not be put in here. Then we have:

"performers", in the case of a mechanical performance, means the persons whose performance is mechanically reproduced;

This would seem to exclude performers whose performance is recorded electrically. I do not know whether it is put in for the sake of euphony, or something like that, but I would be interested to know what is the distinction.

Mr. Colley

I cannot give Senator Yeats a satisfactory answer on this except to say we are adhering as closely as possible to the Convention. The Convention reflects a general international consensus of opinion as to what rights and privileges should be given to performers and users of their work. It formulises the work and a considerable commercial negotiation of give and take over a very long number of years culminating in the Government negotiation in the Rome Convention of 1961.

The Bill is designed to conform as closely as possible to the Convention and in so far as I have room to manoeuvre on the wording of the Bill within the terms of the Convention these portions of the Bill have been the result of very detailed negotiations in this country with the various Irish interests concerned, including Radio Telefís Éireann. The mechanics of the technicalities of contracts between performers, unions, broadcasters, record companies and other users as we know are very complicated. I would suggest that the function of the Legislature is to provide a general framework within which these rights and duties can be worked out but that the technicalities of their contracts are really a matter for the parties concerned than for the Legislature.

Mr. O'Quigley

I intended to raise a point on this question of performance too. The point I want to raise and, perhaps, I should deal with it first is whether or not, for the sake of clarifying my own mind, performance means performance by amateur as well as professional persons. You could have people who are generally first-class amateur performers, who make records and so on, and who would not be professional performers. It seems to me they are entitled to just as much protection as professional people. I can imagine people singing sean-nós and that sort of thing and who never would want to be professional performers. Nonetheless, their records might well have a very high merit and it seems to me that they would be equally entitled to the protection that the professional performers would be entitled to. I should like the Minister to indicate whether the amateurs as well as the professionals are in. One would think they are out because of these negotiations that have taken place. They are what I would think are the regular professionals in the world of entertainment, or the unions representing the professionals in the world of entertainment.

Coming to Senator Yeats's point as to whether a comedian is included in a "performance", it is not good enough for the Minister to say that this is a matter for the courts. That is a most unsatisfactory attitude for the Legislature to adopt. The courts, in turn, will throw the ball back and ask: What does the Legislature intend? It is the function of the courts to say what we intend to enact in this Bill and we ought to make it as clear as words and punctuation and good grammer can make it what we intend to cover in it by "performance".

It is either for the Minister to say that the Convention lays this or that down. The Convention forms no part of our law except if we take it holus bolus under the Constitution. When we talk of international Conventions, as we did in the Load Lines Bill the other day, which in turn will be subject to the jurisdiction of our courts, we must say in the legislation what we want to do and spell that out quite clearly. I would think from reading "performers" as defined here that the comedian is not in, that he is not protected. If one looks at the way this definition is worded it says:

"performance" means a performance of any actors, singers, musicians, dancers or other persons who

and then it goes on:

act, sing, deliver, declaim, play in or otherwise perform...

Then you are left with what they perform. There are three things: "dramatic, musical or artistic works". It all depends on whether the guff the comedian made was done in an artistic way as an artistic work. Was his performance in his rendering of it an artistic work? If he is coming to sing in a public house and relaying that we may say it is done artistically no doubt but the guff an artist is giving is not artistic. Therefore, a comedian's— Jimmy O'Dea's famous conversations, whether it is backing a horse or trying to get a drink after hours or whatever it is—particular work not being artistic work would clearly in my view not be protected.

The Minister is a lawyer and he may take an entirely different view but it will take days to sort it out as correct. What we ought to do in this Bill is to say quite clearly what we want. Either we want to have a comedian in or we do not. If we do we should put in some kind of an amendment or phrase to include people who are not delivering or declaring or acting. We should put in a phrase or amendment to include people who are delivering, declaring or acting which are not artistic works but who are doing it artistically.

Mr. Sheldon

That is where we could run into real difficulty because it is a matter of taste and how the courts in their wisdom could decide on that point I should hesitate to say. I cannot see the distinction one can make whether a performance might be artistic but that it is not an artistic work. I think the matter is reasonably clear and I do not think any great doubt could arise. Senator O'Quigley mentioned the case of a person singing in a pub and the performance being amplified. He asked the question of whether it is artistic but that does not arise because anything which occurs in two tones is musical and whether the tones are musical or not is neither here nor there.

Senator Yeats raised the point in regard to the definition of a performer and in his reply the Minister was correct in one thing. He said he did not think he could give a satisfactory reply and he certainly fulfilled that promise because he did not refer to it at all. In this matter we have got to keep within an international convention. This is of importance because the people with whom the Bill is concerned go from one country to another and, therefore, there should be some standard. This, however, does not meet the difficulty of putting in "electrical" in one provision and leaving it out in the other. If nothing had been put in about performers at all, then I think any court would hold that a performance which had been rendered visibly or audibly by electrical or mechanical means is something done by a performer. However, once you put in a limited definition of "performer" it appears that you exclude anything else.

Mr. Colley

First of all, in regard to the point raised by Senator O'Quigley, amateurs are covered by this Bill. There is nothing in the definition to exclude them. However, to the extent that this Bill regulates payments to them, if they receive payment they cease to be amateurs, but there is nothing in the definition to confine it to professionals. With regard to whether a comedian is covered, one can think of a list of other types of performers about whom one might ask: "Is this person or that person covered?" You cannot simply cover every person in this respect.

It seems to me that the definition here is sufficiently wide to cover the kinds of persons whom we want to cover and certainly the kinds of persons who are normally covered. This, as I have said, is the result of many years of detailed negotiation both at commercial and Government level and we may take it that as a result the kinds of persons normally covered in these transactions are covered in the Bill. My opinion is that a comedian, be he good or bad, is included. First of all, he comes within the first definition which says "a performance of any actors, singers, musicians, dancers or other persons ..." Then we have "who act, sing, deliver, declaim, play". Following that we provide "or otherwise perform literary, dramatic, musical or artistic works and includes any such performance rendered or intended to be rendered audible or visible by mechanical or electrical means". It seems to me that the performance of a comedian, and particularly of Jimmy O'Dea, who has been mentioned, certainly comes within the category of artistic works and also of dramatic works. That is my personal opinion. Whatever we may say in the Bill, in practice it will be interpreted by the courts.

I should draw the attention of the House again to the fact that we cannot hope to define all possible categories. On the question of the definition of "performer" relating only to persons whose performances are mechanically reproduced and not to those whose performances are electrically reproduced, I can only say that the point raised by Senator Yeats and by Senator Sheldon appears to me to require some further explanation on the fact that it is following the Convention. I will undertake to explain it or amend it at the next Stage.

Mr. Sheldon

I can see the explanation. In the case of the performance in one context, it is the method of recording that is being referred to, whether mechanical or electrical. Anything which is not done immediately by the person but which has been recorded and is now broadcast or played in some other way is a mechanical performance as against a personal performance. That is the point intended to be covered and the fact that the mechanical means may be some electrical apparatus does not necessarily mean that an electrical method is used.

Mr. O'Quigley

Is it covered by the case of puppets which are mechanical?

Question put and agreed to.

SECTION 2.

An Cathaoirleach

Amendments Nos. 1 and 2 may be taken together.

Mr. O'Quigley

I move amendment No. 1:

In subsection (1), line 3, before "directly" to insert "for sale or hire".

The thing behind these amendments is that section 2 (1) makes it an offence to do any of the things referred to in paragraphs (a), (b) and (c) and then subsection (2) gives a means of defence to a person who does things which are, in fact, lawful. Subsection (1), line 3 reads: "Makes a record, directly or indirectly from or by means of a performance". That is the offence we are trying to get at—the portion of the subsection which says "without the consent in writing". It is to protect people against the unlawful sale or hire of records of performances. Subsection (1) makes everything unlawful and then provides for an offence. One should specify the things that cannot be done. In subsection (1) we say that if a person does things which are, in fact, lawful he is guilty of an offence but we provide that it will be a good defence if he did it for his private or domestic use.

It is a matter of turning it round the other way and saying that a person shall not hire or sell records of performances and that if he does he will be committing an offence. It is all a question of emphasis. I know Parliamentary draftsmen like to bring in everything and then exclude some things. The emphasis should be the other way—to state what is unlawful.

Mr. Yeats

I do not know what attitude the Minister may take but I urge him not to accept the amendments because it seems to me that the amendment we are now discussing takes no cognisance of the real situation which is that there is no principle at all which one can set forth which entitles people to make copies of other people's performances. The basic proposition one must insist on is that people who have made performances are entitled to other rights.

People are not entitled by any sort of principle to make copies of such records even for their private use. The Bill, in a begrudging kind of way, says that all such recordings are illegal but that we will refrain from prosecuting people who make them for their own private or domestic use. The only justification for that line, if there is a justification for it, is that you cannot prevent them but I think that is as far as it should go. I do not accept any such principle as the one laid down in the amendment that people are entitled to make copies for their own private use. People are not entitled to make such recordings but no great harm is done by them and you cannot prevent them from doing it.

Mr. Colley

These two amendments seem to me to be unacceptable both on the theoretical and practical basis. The theoretical basis has been dealt with by Senator Yeats. The whole purpose of the Bill is to protect the performer and to ensure that he gets paid for the pleasure people get out of his performance. If a person records that performance for his private and domestic use he gets great pleasure from the performance many times over. The Bill, as drafted, makes an exception of such a record and does not insist on the performer being paid each time the record is used. The exception is a privilege and is open to abuse.

That is the theoretical objection I have to the change of emphasis but, on the practical level, a person who bona fide makes a recording for domestic or private use has nothing to fear from the provisions of the Bill. It is only the person who tries to abuse the privilege who has anything to fear and I do not think the House would insist or protect such a person in that way. Therefore, I think it is better to leave the onus on the person who wishes to make a recording for private and domestic use to prove that he is doing it for private and domestic use. It could only arise in the case of somebody who was not deliberately attempting to abuse the privilege.

Amendment, by leave, withdrawn.

Amendment No. 2 not moved.

An Cathaoirleach

The Chair suggests that amendments Nos. 3 and 4 be taken together.

Mr. O'Quigley

I move amendment No. 3:

In subsection (4), lines 48 and 49, to delete "being a performance" and substitute "the performance is one".

This is the same kind of thing. When I was reading the subsection I found it difficult to make out what was meant by the awkward construction and this amendment makes it somewhat clearer when you are reading it. It is a question of drafting. It is a question of whether the Minister will agree that it reads clearer in the amendment than in the Bill. I found it difficult to follow what it meant.

Mr. Colley

I agree with the Senator that the amendment makes the matter clearer and for that reason I propose to accept it.

Amendment agreed to.

Question proposed: "That section 2, as amended, stand part of the Bill."

Mr. O'Quigley

There are a few matters which arise on this section and which it has already been stated by the Minister and other people that the courts will interpret them. I do not think we should act in that way. Everybody reading these sections should know what is meant by them. People who are trained to interpret statutes should always be given a fairly clear idea of what their provisions are and the courts should always be the last resort in relation to a Bill of this kind where you are dealing with commercial interests who always want quick and firm decisions. It is not always possible to obtain such decisions and for that reason I would like the Minister to clarify a few matters in this section.

In subsection (2) it is stated that where a person is charged with an offence under subsection (1) (a) of this section, it shall be a defence to prove that the record to which the charge relates was made for his private and domestic use only. In this connection I am thinking of the diligent teacher who might make a recording of a Shakespearian play broadcast by Telefís Éireann and bring it into his school for the purpose of allowing some of his pupils to hear it time and time again so as to hear the diction in the play. I wonder if that would be regarded as making a record for his private use. I know it could hardly be regarded as making a record for his domestic use. I am certain that it has been done from time to time and, although it is not done for private use, there should be no objection to it. Would that matter be an offence under the Bill?

There is also a reference to recordings made by Telefís Éireann by reason of its own facilities. Telefís Éireann have a reciprocal arrangement with the BBC by which each body make recordings for the other. I wonder if the BBC does a recording on behalf of Telefís Éireann whether that is within the exemption provided by subsection (3).

Another point arises where no offence is committed if consent is given by the performer in advance. If consent is given to the recording of a play in which all the performers are agreeable with the exception of one, can that one person hold up and prevent the recording? That would also arise in the case of a performance given by a choir. It might be easy to deal with that but not with the case of the one performer in a play.

Mr. Colley

Even in that case an alternative could be provided.

Mr. O'Quigley

It may well be the view in the artistic and theatrical world that this is the way it should be. It is just a matter of clarification.

Mr. Colley

To deal with Senator O'Quigley's last point first, the one person can hold up the whole arrangement. Nothing can be done except cancel the performance or cancel the person concerned and substitute for them. On the question of whether or not a teacher making a recording of, say, a Shakespearian play and using it for the benefit of his pupils. I am afraid that this is question of interpretation of the meaning of the words "private and domestic use". A different view might be taken of this by other people but my view, for what it is worth, would be that "private and domestic use" does not cover the circumstances envisaged by Senator O'Quigley. All my advisers do not agree with me in that. It is my own personal opinion and it is coloured by reason of the fact that there are records issued for schoolteachers or at least with the intention that the bulk of the sales will be to schoolteachers using them for the benefit of their pupils and that this is a form of performance for which performers would expect they should be paid. The Senator will appreciate, of course, that it depends on the in-domestic use". One could raise many points under this Bill and question whether or not they would be covered but I think what we have got to do is simply take what appears to us to be the meaning of the words and assume the courts will interpret them in that way. Of course, in relation to any Bill one may act in this way but it does not follow that the courts will interpret it in the way we assume it is intended.

The third point raised by Senator O'Quigley I am afraid I have not got. He raised some point about the use by the BBC——

Mr. O'Quigley

What I am saying is that the Bill says "the record was made by Radio Telefís Éireann by means of its own facilities". Now on occasions the BBC's facilities may be used for the making of a recording for Telefís Éireann. It seems to me that when we use the words "its own facilities" we are preventing this. Supposing, for example, a recording was made of the Edinburgh Festival by the BBC and passed over here to Telefís Éireann, that is not something that was made by means of Radio Telefís Éireann's own facilities and, therefore, not having the consent of the performers, they would not be entitled to show it.

Mr. Sheldon

Surely that is a very narrow interpretation of "its own facilities"? Surely in the case mentioned by Senator O'Quigley the BBC are no more than the agents of RTE. They are presumably being paid for it, RTE ask them to make the recording so I would imagine this would come within "its own facilities", otherwise what does "its own facilities" mean?

Mr. O'Quigley

Its own mechanical apparatus and staff.

Mr. Sheldon

So that they could not hire someone else to do it, they must be on their permanent payroll?

Mr. O'Quigley

I would not go that far.

Mr. Sheldon

That is the point, how far.

Mr. O'Quigley

I feel that the words "its own facilities" mean that it has a proprietary interest in the facilities that are being used, that it owns them, that it is the owner of them. For instance, if there is certain equipment that is regularly hired out to certain companies and this is hired out to Telefís Éireann, then this would be part of Telefís Éireann's own facilities. That is a different thing to a recording being made by the BBC's television facilities for use by RTE. Again, it is a question of clarification. I do not know if it is desirable that we should preclude Telefís Éireann from using the BBC or not. It is merely a matter of what the Minister's own view of it is.

Mr. Colley

What is generally intended to be got at is what is known as ephemeral records. It is often more convenient both for RTE and for the performers involved to make a record of a performance to the broadcasting of which the performers have agreed rather than to broadcast the live performance. This is often for reasons of convenience or for technical reasons. This is intended to be covered in this section. Similarly, it may happen that RTE would wish to make a record from a record which it was entitled to broadcast in order to incorporate the performance in, say, a wider radio programme. This would be covered under the ephemeral records. I am explaining this as the kind of thing that is intended to be dealt with under this section but on the strict interpretation of the wording it would seem to me that Senator O'Quigley's contention is probably correct and that unless the facilities were actually those of RTE as distinct from those which they might use on an agency basis of the BBC, I do not think they would be covered by this.

Mr. O'Quigley

I do not know enough about the Convention, I have not got a copy of it, but does the Convention prohibit the authorised agents of RTE from making a recording for RTE purposes alone because if it does not it might be desirable to put into the subsection a phrase to the effect "or its duly authorised agents". That would still seem to me to be within the general intent of this Bill and of the Convention. One does not want to find RTE some day ready to go places to make a recording—they have had unfortunate experiences in that regard already and they were not either artistic, musical or literary; they were certainly I suppose dramatic—one does not want to find them in a position where they are advised by their lawyer that they cannot do that. I think if it can be done within the spirit of the Convention and if there is no objection to it we ought to give RTE the benefit of this amendment.

There is another thing that arises in this connection. Supposing there is, as sometimes happens, a technical breakdown. If there is a programme like the Eurovision Song Contest or the Fashion Contest where I believe recently the transmission broke down between England and this country, if there is an agreement that it shall be transmitted simultaneously on BBC, UTV and RTE and supposing something goes wrong between here and the BBC and that Telefís Éireann, wishing to give service to the public, get a recording of it, can they then show that recording of the event? If there is an agreement to show it simultaneously and there is a breakdown can they then show it later on? I wonder whether we are excluding Telefís Éireann from availing itself of that kind of concession in this section. I do not know and I do not know enough about the Convention to know whether it is possible within the limitation of the Convention to enable RTE to avail itself of this kind of facility.

Mr. Colley

The question of the breakdown of the kind envisaged by Senator O'Quigley is one which I feel is better dealt with in the actual contract for the right to rebroadcast. We cannot, I think, provide for every possible contingency, which might be provided for in the contract, in the statute. I would assume that in the contract dealing with those there would be some clause providing for some form of arbitration in the event of disputes in the implementation of the contract, and the arbitrator dealing with it would do so with regard to the general principles laid down here where there is permission from the performer to broadcast the performance, that this extension to broadcasting the performance can exclude the actual live performance. In other words, if there is a consent to broadcast and to rebroadcast that is the end of the matter. The interval involved, provided it is not too long, does not change the validity of that. As I say, this seems to be more appropriate for the specific contracts which would be entered into in this regard.

I would point out that the freedom conferred in relation to reproduction of records is available not only to RTE but to any persons and that they are strictly in accordance with Articles 7 and 15 of the Convention. The wording, I think, follows very closely the wording of the Convention in this regard. I think it may be taken that we are not restricting RTE unduly here. This Bill is the result of a very great deal of negotiation, as I said earlier, with the various parties, including RTE and anything RTE have looked for has been given to them subject to the rights of the other parties concerned. Senator O'Quigley may rest assured that we are not restricting RTE under this subsection in any way which is not accepted by them or is not justifiable by the facts.

Question put and agreed to.

SECTION 3.

Mr. O'Quigley

I move amendment No. 4:

In subsection (4), line 49, to delete "being a performance" and substitute "the performance is one".

Amendment agreed to.

Question proposed: "That section 3, as amended, stand part of the Bill".

Mr. Yeats

I should like to ask a question in relation to subsection (3) (b). If I understand this subsection correctly, it empowers RTE without committing an offence under this Bill, to appear to make copies of a television film or a cinematograph film, and not only that, but they may make as many copies as they like of such film and to use them for any purpose they see fit. I am not quite clear whether this is the meaning of this subsection. If so, what purpose can it serve?

Mr. Colley

I am afraid I have not got the point raised by the Senator.

Mr. Yeats

I am trying to avoid having to read large chunks of this very complicated Bill. Subsection (3) of section 3 reads:

The making by Radio Telefís Éireann by means of its own facilities of a cinematograph film from or by means of a performance without the consent in writing of the performers shall not be a contravention of subsection (1) of this section if—

(a) the performers had consented in writing to the broadcasting of the performance by Radio Telefís Éireann and the film or a reproduction of it was not used by Radio Telefís Éireann for any purpose other than the broadcast, or

(b) the film was a film of a performance incorporated in a cinematograph film lawfully made.

If I understand this correctly, it means that RTE can take, say, a commercial cinematographic film, make copies of that film, as many copies as they like, and use them in any way they see fit because there is no limitation at all in this particular section. I am just wondering what is the purpose of this. I am sure there is some purpose but I am rather curious about it.

Mr. Colley

I think this arrangement is general international practice in this regard. The Convention deals with films and records. The application to rebroadcast films and the limitations which are applied to rebroadcasting of records are dealt with in section 2, subsection (3) (b). Article 19 of the Convention provides and I quote:

Once a performer has consented to the incorporation of his performance in a visual or audio-visual fixation Article 7 shall have no further application.

Article 7 deals inter alia with reproduction of a fixation without consent so the way in which films on the one hand and records are dealt with is different. This arrangement with international practice in this regard is specifically provided for in the Convention.

Question put and agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill".

Mr. O'Quigley

What we are doing here is making it an offence under this measure to make a record of any performance without the consent of a performer living in another country if the law of that country requires that that consent should be forthcoming. That is the kind of reciprocal arrangements it is necessary to have in the copyright, trade mark cases and so on where we are a party to an international Convention. The only point I am concerned about here is when it comes to determining whether or not the consent of any performer was required by the law of another country how it is proposed to establish what the law of that other country is, especially if it is going to be a criminal offence for the purpose of paragraph (b) of subsections (2) and (3) of section 2 of this Act. It is all very well for you to say yes, if you are doing something in relation to a performance in another country in which it is necessary under the law of that country to obtain the consent of the performer, that that will be an offence under our law. It is all very well to say that. At the same time I would like to know how we are going to establish what the law of another country is for the purposes of this prosecution under section 2.

Mr. Colley

I think in a case like this the performer would have to enquire what the law is in the other country and to produce evidence of this in our court. This is a procedure which is not uncommon in our courts and I am sure Senator O'Quigley has had some experience of the establishments in our courts. One is the law in relation to specific formulae in another court under another jurisdiction. The Senator will recall I am sure that this arises with revelant frequency in regard to the law of intestacy in the USA and the different States in America. On occasion this has to be established in our courts and I would assume that the same procedure would be followed here.

Mr. O'Quigley

The Minister is quite right. I am aware of all that. That is all right on the non-criminal side. One can have an affidavit made by an American lawyer or an affidavit under German or French law stating what the law of their States is and that is accepted as a fact on the non-criminal side; but it is a different situation when we come to prosecuting and establishing a criminal offence. I do not know offhand, and perhaps the Minister will enlighten me and others, whether we have any similar situation obtaining in our law where an offence is constituted by reason of a person resident here within the jurisdiction of the court doing something which is contrary to foreign law.

Mr. Sheldon

Surely the fact that this only applies to an order under section 12 makes a difference. An order can only be made when a country has assented to the Convention.

Something would be known of the background.

Mr. Colley

This is largely a matter of reciprocation. Our performers will be protected in other countries adhering to the Convention in the same way as their nationals are protected here. The question of establishing what was the law in that other country would, as I said earlier, follow the normal procedure. I cannot say offhand that there are other statutes on the same lines. I would be very surprised if there were not such because of various international Conventions to which we have adhered in the past. I take it Senator O'Quigley's concern is the method of proving the law of another country. What is wrong with the procedure which is normally followed in these cases?

Mr. O'Quigley

It is one thing to adopt a certain procedure on the civil side. If I were drafting an indictment in relation to a charge under this measure based on the law obtaining in France in relation to performers' protection I would run into great difficulties. It is easy enough in regard to the civil side. The Minister and the House will be well aware that in order to establish that an offence has been committed it will have to be established beyond reasonable doubt, and what we would be doing in subsection 4 is saying that an offence shall have been committed if:

under subsections (b) and (c) of section 2 (1) of this Act and paragraphs (b) and (c) of section 3 (1) of this Act, a record or film to which an order under Section 12 of this Act applies and which is made directly or indirectly from or by means of a performance...if the consent of any performer to the making of the record or film was required by the law of the country in which it was made,...

In a civil case, if a person claims royalties or if a person were selling records of a performance made under the requirements of the law of France or West Germany, I can well see somebody on the civil side going in to court with an affidavit and saying: "That is the law in France" or of West Germany and establishing his claims. When it comes to the criminal side, it might be necessary to put in some further provision to make this section work. It may well be that some other countries have adapted to make similar reciprocal arrangements which would work for us. If so, it might be put into this Bill.

I do not think the Minister has adverted to this. It is not easy to ask the Minister to elaborate on this. It is a difficulty which arises. I cannot think of any case offhand, of any case in criminal law, where a breach has been committed in a foreign country, and the proof of that law is an ingredient in the proof of the criminal offence. We may be breaking new ground in this section and if we are we ought to have another look at it after the Minister has been advised by the Attorney General.

Mr. Colley

I had not adverted to this point but I had adverted to another point and the Senator has me confused. However, I am satisfied on the other point. I had not adverted to this but on looking at it I do not think it presents a problem. I accept the point raised by Senator O'Quigley and I undertake to look into it between this and the next Stage.

Question put and agreed to.

Section 5 agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill".

Mr. Yeats

This section reads:

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

Rebroadcasting is defined in section 1 as the simultaneous rebroadcast by one broadcasting organisation of a broadcast of another. It covers Eurovision in particular. It also covers simultaneous broadcasting. Probably Eurovision is mainly what is in question here. I mentioned on Second Reading that I was worried about this section. It says, in effect, that if an Irish artiste agrees to do a broadcast for Radio Éireann as far as this Bill is concerned unless there is something in his contract that covers Eurovision there is no legal obligation under this Bill on Radio Éireann to pay him any additional sum because of its rebroadcast on Eurovision or in any other way if it is done simultaneously. I accept that in fact Radio Telefís Éireann pay additional fees in such cases. They have a hard and fast agreement with the trade unions, Equity for the actors and the Irish Federation of Musicians for a section of the musicians, by which fixed percentages are paid and an increase on the original fee in the case of such rebroadcasts, and in the case of freelance artistes who do not belong to any trade union similar increased fees are always paid in cases of rebroadcasts for the broadcasting organisations.

My objection to this section is that in principle it seems to be wrong that we should enact in a statutory way a blanket consent which would empower Radio Telefís Éireann in law not to pay any additional fees and would give them power to authorise such simultaneous rebroadcasts without any reference to the actual performers.

I understand that the reason this has been inserted in the Bill is that, otherwise, Radio Éireann might be faced with unreasonable demands by foreign performers in cases where we took rebroadcasts from other countries under Eurovision. In such a case the foreign broadcasting organisation has to pay fees in accordance with whatever arrangements they may have in their own country. There is no obligation, moral or otherwise, on RTE to pay further additional sums for such performance.

However, the trouble is that in providing against this possibility we seem to be throwing out the baby with the bathwater. We are enacting a provision that the person is not entitled to a further fee unless it is inserted in the contract. The small print in contracts between RTE and performing artistes does not provide for such increased payments for rebroadcasts on Eurovision. This section is wrong in principle. At the moment, until this Bill becomes law, an Irish artiste has some contractual right to enforce the payment of additional fees in the unlikely event that RTE refuse to pay them, but once the Bill becomes law the situation changes and further payments by RTE in the case of rebroadcasts will be merely on an ex gratia basis. It may be said that it is up to the performer to argue his case with RTE but I do not consider that to be a reasonable proposition.

The average freelance artiste is not a lawyer. The average artiste who does not belong to a union would not be aware that a problem of this kind existed or that there could be any question of his legal rights. In any event, even if he did realise it, no artiste wants to be put in the position of being looked on by RTE as a legalistic trouble maker. Unless he is in the category of the Beatles or the Rolling Stones or somebody eminent like that, the artiste is not in a position to argue this with a broadcasting organisation and, therefore, the onus should be on the organisation rather than the artiste to see that his rights are asserted in a case like this.

I have looked at the section to see how it could be amended and I realise that great difficulties undoubtedly arise. I gather that the international convention forbids any discrimination between artistes of one country and another, and to provide that the consent of Irish artistes should be required but not the consent of foreign artistes would, therefore, be a breach of the Convention. One could eliminate the section altogether but that, perhaps, would face RTE with the danger of being flooded with demands from foreign artistes who were not morally entitled to the benefits claimed.

The section seems to be unsatisfactory as it stands but I am not sure what, if anything, can be done about it. The situation might be remedied—to some extent though not entirely—if some sort of undertaking could be wrung out of RTE to insert in all their contracts in the future some provision in the small print that in the case of rebroadcasts the usual additional payments would be made. I think that would partly cover the position. It would also cover RTE in a respect which this section does not cover them because the section deals only with simultaneous rebroadcasts. It does not cover the far more common situation in which a television network or radio station broadcast is in later weeks or months sold to another broadcasting concern.

The usual practice in Radio Éireann in the past has been that in the case of such rebroadcasts they did not bother to ask the original performer for his permission. He did not even know of the rebroadcast until a cheque came to his doorstep, of which he was very glad. That normal procedure of the past will be contrary to the Bill and render RTE liable to prosecution because they will have made a second broadcast without the consent of the performer. They can cover themselves against that by putting into the contract some sort of vague provision that the performer's consent to the contract is also a consent to further rebroadcast in respect of which he would be paid additional fees. It would cover the performer and RTE in the matter of later rebroadcasts rather than the simultaneuos rebroadcasts covered by this section.

Mr. Colley

Senator Yeats raised this point on the last Stage and since then I have given it a good deal of thought in depth. The Senator has more or less set out what the position is. First, the section was put in largely to protect RTE against unfair claims by performers in foreign countries. To amend it so as to ensure the protection of Irish performers in the way Senator Yeats wishes would, as he indicated, get us into difficulty in regard to the non-discrimination clause in the Convention. Senator Yeats' concern is with Irish performers and in particular those who may not be members of one of the unions involved in these matters. In an effort to tie the situation down a little I asked RTE to give me in writing a statement of what the position is and it might be no harm if I were to read this and have it incorporated in the records of the House. I have here a letter dated 4th June, 1968, addressed by the legal officer of RTE to the Controller of Patents. It states:

The practice in Radio Telefís Éireann is to have a written contract with all performers, both in sound and television, before a broadcasts takes place. Contracts with members of Equity and the Irish Federation of Musicians (and the bulk of performers' contracts are with these) provide that supplementary fees in respect of rebroadcasts will be paid in accordance with the terms of the Agreement between RTE and Equity on the one hand, and between RTE and the Federation on the other hand. In the case of non-members the individual contracts specify the conditions governing rebroadcasts, when these are applicable.

It must be remembered that section 6 deals with rebroadcasts only as defined in section 1 of the Bill, that is to say the simultaneous broadcast by one broadcasting organisation of a broadcast of another broadcasting organisation. Supplementary fees are normally paid in respect of such broadcasts in the case of television, but in sound broadcasting it has always been the practice that simultaneous international broadcasts do not give rise to supplementary payments to performing artistes. This, with the full agreement of the International Federation of Performers, is the general arrangement among the members of the European Broadcasting Union, of which Ireland has been a member since its foundation, and if RTE were to depart from such an arrangement it would create a dangerous and unacceptable precedent on the international level. In actual practice, however, the number of international simultaneous sound relays involving performers originating in this country is insignificant, and moreover at no time has any such rebroadcast given rise to complaints from performers in regard to supplementary fees.

Therefore it seems to me that on the basis of this letter setting out the practice in Radio Telefís Éireann which they confirm to be the one they follow and intend to follow, that this is as far as we can go to deal with the situation envisaged by Senator Yeats which is more a theoretical than a practical danger. I admit that there is a theoretical danger but I do not think that in practice there is any danger.

Mr. O'Quigley

For the guidance of the Minister, does the have to leave that letter on the Table of the House?

An Cathaoirleach

The quotation will be included in the Official Record and also the source.

Mr. O'Quigley

I thought it was customary to lay such letters on the Table of the House.

An Cathaoirleach

Unless there are some special circumstances the House will take the quotation as recorded in the Official Report.

Question put and agreed to.

Section 7 agreed to.

SECTION 8.

Mr. O'Quigley

I move amendment No. 5:

In line 45, to delete "adapted" and substitute "intended".

Section 8 is another section which is not too happily phrased. It seems to me that what we want to get at here is to enable the court which convicts a person of making a record to confiscate, or decide what is to be done with, that record. When we are dealing with a contrivance for the making of records we have to read it as a contrivance adapted for the making of records in contravention of the Act. Every contrivance capable of making a record is a contrivance adapted for the making of a record in contravention of the Act, there is no doubt about that, but what we are trying to get at is one which is intended for the making of records or has been used for the making of records in contravention of the Act. Instead of using the word "adapted" we ought to have power to make a differentiation between a contrivance which can be used for the making of a record and a contrivance which is used for the making of a record in contravention of the Act. It is all a matter of phraseology.

Might I now go on to the section itself? It is extremely badly worded. It says that on conviction of the offender the court may order that all records, cinematograph films, plates or similar contrivances in the possession of the offender which appear to the court to have been made in contravention of the Act, or to be adapted for the making of records in contravention of the Act, may be destroyed or otherwise dealt with. Does that mean any contrivance or does it mean a contrivance adapted for the making of the record?

I think it would be better if the Minister broke up the section and first dealt with the things made, and then the mechanical contrivances which are the means by which these things have been made or which can be used for the making of them. It is a very higgledy-piggledy kind of section and I do not think it would do credit to a leaving certificate student under our new arrangements to have written a sentence of that kind. The Minister might have a look at it again in order to break it up and to deal separately with the things that are made in contravention of the Act and the machinery that is used in the making of them.

Mr. Colley

The word "adapted" in the Bill is already wide enough in my opinion and the use of the word "intended" in place of "adapted" would go too far as it has a much wider connotation. The word "adapted" is capable of objective measurement and the word "intended" is much too difficult to interpret. It seems to me, therefore, that to accept the amendment would be going too far and I think the House should remember that we are dealing with a situation in which a person had already been convicted and it is in that context that the court is given power in its discretion to order the destruction of the various records, films, plates or similar contrivances which have been made in contravention of the Act or adapted for the making of records in contravention of the Act. To put in the word "intended" could mean that something which the convicted person had innocently in his possession could come under the section. While we want to deal with such persons we do not want to take the matter too far.

On the general wording of this section, I do not think it is quite as bad as Senator O'Quigley suggests but I feel that there could be a certain amount of confusion and I will have another look at the matter before the next Stage.

Mr. Yeats

I hope that in doing so the Minister will not spoil the section which seems to me to be one of the few that I can clearly understand.

Amendment, by leave, withdrawn.

Question proposed: "That section 8 stand part of the Bill."

Mr. Sheldon

Some of the matters that I intended to raise on this section have already been dealt with. I noticed in this section that the word "plate" had one connotation and one only. In section 7 it is reasonably clear but in section 8 it refers to plates or similar contrivances which might as well be flying saucers. It struck me that in this section almost too much is being said in too few words. I feel that if it were expanded a bit it would be clearer and get the records and the contrivances for making records somewhat separated because you do have in the middle of line 3 "plates or similar contrivances in the possession of the offender which appear to the court to have been made in contravention of this Act." That looks to me as if the plates or similar contrivances are an offence which is probably not what the Minister intended to get at. I doubt if the manufacturer of a tape recorder is going to find himself in trouble. I can see that the person must already be an offender which keeps the manufacturer out I presume but at the same time I do not like this type of wording where you have a "plate" just referred to without any indication of what type of plate; the fact that it is referred to in an earlier section as a plate for the making of records is not quite sufficient I feel.

Mr. O'Quigley

Not wishing to delay the Minister or the House too long, I should like to draw the Minister's attention to something that Senator Sheldon has just touched on. My amendment, which is actually Senator FitzGerald's amendment, is much nearer to the mind and heart of the Minister than the word "adapted" because in section 7 of the Bill what the Minister is trying to get at and what the House has been asked to ordain is that if a person has in his possession a plate or similar contrivance for the purpose of making records in contravention of this Act, he shall be guilty of an offence, and what I want to get at is the "plate or similar contrivance for the purpose of making records in contravention of this Act" would be an exact reproduction of what is in section 7 but is a longer way of saying what I was saying by using the words "intended for the making of records in contravention of this Act". It seems to me if I might go back to section 7 for the purpose of enabling the Minister in accordance with the Standing Orders of the House to do so, that he should bring into section 7 the power to confiscate these plates and contrivances which are in the possession of a person for the purpose of making records. At any trial there can be two charges, one of having these things for the purpose of making records and the other of, in fact, using them and having used them for that purpose. It would be much clearer if the two sections were boxed together and mixed up and divided up along the lines that we have suggested.

Mr. Colley

I have indicated that there is a possibility of confusion in the wording of the section and that I intend to have another look at it before the next Stage.

Mr. O'Quigley

I should like to congratulate the Minister on his diplomatic use of language and Senator Yeats on his clarity.

Question put and agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mr. O'Quigley

I think the House is entitled to ask the Minister why we are using in line 5 the word "principle" as it is spelled. I think the Minister must concede that this is not correct.

Mr. Colley

I wonder which copy of the Bill has the Senator got. I understand that in the latest copy this error does not appear.

Mr. O'Quigley

As passed by Dáil Éireann on 23rd April.

Mr. Colley

I was misinformed. I shall deal with that, too, between now and the next Stage.

Mr. Yeats

I should like to query my copy of the Bill as passed by Dáil Éireann. It still has "principle" misspelled. However, of more practical moment, under subsection (b) I should like to inquire the meaning of this. I imagine that the answer I will get will be that this subsection sets out the terms of the Convention and in that case I presume we are bound to abide by it but it does not seem to me entirely desirable in certain respects. If I understand it correctly it means that if anyone is charged with an offence under this Act they can prove that the inclusion of the performance in question in a film or a recording was only by way of background or incidental. It seems to me that that will entitle anyone to make a film and include in that film as part of the background music or score someone singing a song without any reference to the performer. I may be wrong in thinking that is the meaning but I suspect it is. Perhaps the Minister could enlighten me.

Mr. Colley

It is a question of interpretation of the words "by way of background". I cannot give Senator Yeats a definitive interpretation of this but my own impression would be that a snatch of some song or other as a background to some film would be protected under this section but that, say, a full performance even as background would not. Again, I am speaking purely personally on this and it is a question of the interpretation of these words as they have been interpreted in other countries and are likely to be interpreted in the courts here.

Mr. Yeats

I take it in any event that this is in accordance with the Convention and we are pretty well bound to follow it so that I am not suggesting that a change should be made. I do not suppose we are empowered to do so but I would be a bit afraid of what might be brought in under the heading of "by way of background" because I think that in any film with some sort of music, it could be called a background and I think one could be exempt from prosecution under this section. I think it goes further than is desirable but I presume we are bound by the international Convention.

Mr. Colley

In fact, the actual word "background" does not appear in the Convention; that it is in line with the provision in the British Bill. In the circumstances, I think I had better take another look at this also before the next Stage.

Question put and agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill".

Mr. Crowley

I have spent some time studying this clause and the one which follows. I think you cannot read section 10 without referring to section 11. Except for the explanations that we have heard this afternoon from the Minister my first conviction would be that the Bill would be far better and would be strengthened without either one or the other of those two clauses. However, I gather from several things the Minister has said that that may not be possible. I understand that this Bill is necessary in order to bring our practice here into line with the international Convention. That is quite understandable but, perhaps, the Minister could tell us why the clause should not simply provide for the production, for example, under clause 10 of the written consent of the performer at the same time as the clause requires production of the written consent of the person purporting to represent the performer.

That is the first point. I cannot see how that should present any difficulty having regard to the fact that the written consent of the performer for the first consent is the one which must be obtained in any event. You cannot really discuss this properly without referring to section 11, otherwise it does not make any sense at all. The other point which struck me was that section 11, having laid down conditions under which a person can be convicted, then stipulates that the fine must be a fine not exceeding £100. I am sure the Minister and other Members of the House can visualise circumstances in which a fine of such a nominal amount of anything from a penny to £99 19s 11d——

An Cathaoirleach

Perhaps we ought to leave section 11 until we dispose of section 10.

Mr. Crowley

I was hoping we might dispose of the two points together.

An Cathaoirleach

As it is now six o'clock, I wonder if the House would be agreeable to sit until this Stage is finished?

Tomás Ó Maoláin

I suggest we should.

Mr. O'Quigley

That is agreed.

Mr. Crowley

That is all I have to say about that. I believe the fine here is too small to provide a sufficient deterrent. We can visualise circumstances in which a person for one reason or another, but particularly for the business of making profit, may well when the risk is not too great, commit this offence. I do not believe a fine of not more than £100 in order to do certain things is a sufficient deterrent. Those are the two points which struck me and I would like to hear the Minister on them. Perhaps he might also consider them between now and Report Stage.

Mr. Colley

I am not quite sure if I grasped Senator Crowley's point. Section 10 provides protection for a person who acts bona fide in dealing with somebody who claims to be authorised to act on behalf of a group of performers and where the person with whom that unauthorised person is dealing has reason to believe they are not authorised. In other words, he is acting bona fide and is thereby protected. Might I refer to Section 11? As Senator Crowley rightly said, you cannot really deal with one without taking the two together, It deals with the person who purports to have this consent when, in fact, he has not. I think the point about having the consent of the performer is simply to conform with the general practice where you have a group of people with, say, a manager negotiating their business contracts or, as was mentioned earlier, perhaps a choir. I do not think it is the normal practice to have everybody sign who is going to perform. The more usual practice is to have some individual, some authorised person, say, the manager sign on behalf of——

Mr. Crowley

The group.

Mr. Colley

Yes. That is why the provision is made in the way it is here. Does that meet Senator Crowley's point?

Mr. Crowley

Not quite. I thought my point was even simpler than that. The section actualy stipulates:

Where a record, cinematograph film, broadcast or transmission is made with the consent in writing of a person who, at the time of giving the consent, represented that he was authorised by the performers to give it on their behalf...

That is straight enough. Would it not have been better still to provide more protection and to provide that the written consent of the actual performers or somebody acting on behalf of the performers should be produced? Would it not be more straightforward if it came from the actual performers or person authorised to speak on behalf of the performers?

Mr. Colley

As I said, I think this is designed really to cover instances where there is more than one performer but not always. It may be an individual performer acting through a manager but where it is not it is obviously better to have somebody acting on behalf of the whole group. What we are doing here and what we have written in is that where somebody says that he is an authorised person we are saying that he should not commit an offence simply because we are dealing with him. Then the next section deals with a person who purports to act in this way but is not authorised to do so.

Question put and agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill".

Mr. Crowley

There is only the point about the adequacy or inadequacy of this section.

Mr. Colley

Much thought was given to the amount of penalties in this Bill. A good deal of correspondence took place between the various interests and, of course, one may have any number of views in regard to penalties in relation to particular offences as to whether they are too big or too small. In general, having regard to the negotiations and arguments which took place about penalties in this Bill, this seems to be reasonable in the light of the possible offences and the circumstances of those likely to be convicted. You must remember, in the normal way if you are dealing with reputable performers, where, perhaps, the fees would be large, this kind of offence is less likely to occur than in the case of people who are not, perhaps, going to be paid so much. So, the amount of the fine in most cases which would arise under this would be fairly substantial.

Mr. O'Quigley

Senator Crowley said that it would be a nominal fine. He must be dealing with affluent people.

Mr. Crowley

In this section it is only £100.

Mr. O'Quigley

There is provision for £1,000 in another place.

Question put and agreed to.

SECTION 12.

Question proposed: "That section 12 stand part of the Bill."

Mr. O'Quigley

Here we are going to apply a Government order under the provisions of this measure to other countries. It seems to me to be desirable from the point of view of the Government that this order should be laid before each House of the Oireachtas but there is not any provision in the Bill for doing that. I think the Minister will readily agree that an order of this kind applying provisions of this Act to the records and so on of other countries is the kind of order which the Minister should lay before each House of the Oireachtas; otherwise there is no obligation on anybody to bring the matter to our attention. The Convention itself is in the statute but there is no obligation to lay it before each House of the Oireachtas. There should be an obligation in such a far-reaching provision of this kind. I think the Minister should consider amending this before Report Stage.

Mr. Colley

I will have a look at it.

Question put and agreed to.

Title agreed to.

Bill reported with amendments.

An Cathaoirleach

Next Stage?

Tomás Ó Maoláin

June 12th.

Mr. O'Quigley

I would suggest a fortnight from now because there are a number of amendments the Minister will be considering. There would not be enough time to decide this in another week. It would be useful all round to have a fortnight. It will not take long on the next occasion.

Tomás Ó Maoláin

We will order it for the 12th.

Report Stage ordered for 12th June, 1968.

Business suspended at 6.10 p.m. and resumed at 7.30 p.m.