It is at column 371 of the Official Report of Dáil Éireann of 22 February 1984: It is the third paragraph.
The increased penalties contained in this Bill will strengthen the hand of legitimate interests in protecting their rights and accordingly I recommend the Bill for the approval of the Dáil.
Could I also make the point that the Minister said in his address to the Dáil — I am not sure if it is in the Minister's speech — that copyright is protected by both civil and criminal law and that while for the most part the obligation to protect the copyright owners is exercised through civil law, the Minister in the Dail is clearly stating that he is reinforcing that situation by this Bill which more or less deals with the criminal aspect of the situation? Therefore I feel it is necessary for us to examine how the protection of rights of copyright owners has been exercised since the passage of the 1963 Act 21 years ago.
I believe that a fundamental principle of any law is that reasonable balance has always to be held between competing interests. You cannot go on strengthening the hand or the position of one particular interest if that involves the erosion of the rights of another interest at the other side of the scale. The experience of 21 years has meant that while the rights of copyright owners have been reasonably well protected over that period — and the effect of the 1963 legislation has been to do that — we will indeed be copper fastening and strengthening it in this legislation, the situation of the other side of the scale, and this was part of the problem with Senator Lynch earlier on, is that right which that Act intended to confer on the users of copyright material has been almost totally eroded by events in that period. It was certainly not the intention of the 1963 Act that that should happen. It was not the intention of the Oireachtas at that time, in the debate that took place during the passage of that Act, that that erosion would take place. Indeed provision was made in Part V of the 1963 Act to balance, if you like by Party V, the rights of users as against the rights of the owners of copyright on the other side.
The reality of the situation is that the provisions of the 1963 Act — and a lot of it hinges on the amendments that are proposed here — as far as I know have been so manipulated by organisations representing copyright owners that the protection that was intended to be provided in Part V has in fact been eroded and is now virtually worthless. That is one of the aspects of this situation that I am going to be asking the Minister to look at. I welcome his readiness to look at other weaknesses, and therefore I am saying that now is the opportunity of looking at that and if amendments are necessary. I am of course long enough here to realise that a ministerial amendment or a willingness on the part of the Minister to amend legislation is always far more effective than an attempt on the part of a backbencher to do it.
I hope that in the light of these remarks and other aspects of the situation that I shall now proceed to discuss the Minister will recognise the validity on the case I am making. Basically what I am saying is that we now must exercise the greatest care that what we are doing here particularly in subsection (8) does not copper-fasten the imbalance and the injustice that is now, as far as I am concerned and I am sure other Members of the House will bear me out on this, fairly widespread. There is a danger that this subsection as it stands will catch far more than it has been the intention of the Minister and the intention of the House to catch. Part of the greatest problem in all of this is the question of being performed in public. The 1963 Act is silent as far as what a public place is and so is this 1984 Bill. Because the 1963 Act is silent, as I say, in not defining what a public place is, a host of people and places find that they are caught by demands from organisations representing copyright owners for royalties and licence fees in connection with the situation.
We as the Oireachtas have failed to define what a public place is, but as far as one of these organisations is concerned, the Performing Rights Society, they have found no difficulty. They state that anywhere outside the family circle is a public place. I want to give one example. Again, I am going to quote the publican in this case. He has equal relevance to a shopkeeper or any other businessman. If the access door between your place of business and your sitting-room is open and, if a television set is visible, or if a radio can be heard from your sittingroom by the people in the public part of your premises, that is deemed a performance in public and royalties and licence fees are demanded.
Since 1981 cinemas, clubs, commercial dancehalls, holiday camps, caravan parks, hotel restaurants and cafes had to have individual work licences. Not very far from where I live there is a craft shop. The owner is the only person working there. He has a radio. The shop is deemed a public place and is subject to royalties. Juke boxes, local authorities, non-commercial halls, popular concerts and variety shows, public houses, shop stores, transport, taxis, minibuses and miscellaneous — which covers a multitude — are deemed by the organisations representing the owners of copyright material as public places. From these public places these organisations have extracted royalties and licence fees on the strength of High Court writs.
In the Dáil the Minister said the increased penalties will strengthen the hand of legitimate interests in protecting their rights. We will be strengthening the hands of people to collect royalties, money and fees without providing a balance on the other side in regard to the legitimacy of these demands in any given situation. I regard it as possible and very likely that what is proposed in subsection (8) will apply to a range of activities which are by no means connected with the piracy of films.
I want the Minister to consider excluding from the increased penalties, but not from all the penalties, anything other than the pirating of films. We have been told that is the object of the exercise we are engaged in. The list I read out is not by any means exhaustive because "miscellaneous" covers a host of other things. It covers local parish events, sports, regattas, carnivals and gymkhanas. All these in the smallest parishes throughout rural Ireland have been faced with demands for the payment of royalties to organisations representing the owners of copyright music. They had no opportunity to argue their case or attempt to define whether or not liability existed. Payment was extracted on the basis of High Court writs.
It is not the Minister's intention and it certainly is not mine to criminalise the organisers of these events or the owners of many of the premises I have mentioned by imposing a fine of £1,000 or six months in jail. We need to ensure that this Bill does not pass through this House as an open-ended measure. If we pass this Bill in its present form and, in particular, subsection (8) — and I say this from past experience — it will be used by the owners of copyright material to extract from the sources and the outlets I have mentioned royalties, fees, and so forth.
I want to illustrate one example of the methods which are used to extract these royalties so that the Minister will be quite clear that there is validity in the point I am making in regard to subsection (8) and the use to which it may be put. The usual approach is that organisers of the event are called upon and told they must pay royalties, or they must get a licence from a particular organisation. Irrespective of how the request is made they will not be told whether or not the material they are using is copyright or non-copyright, and that is essential. There is a great deal of non-copyright material.
I am sure the vast bulk of traditional music heard in Senator Lynch's establishment is non-copyright material. They are called upon. They are not told what is copyright and what is non-copyright. There is no discussion or debate. No justification is given. It is just a straightforward demand. If they refuse to pay, a few days later a registered letter comes in the post containing a threat of a High Court action. Included are selected extracts from High Court judgment in favour of the organisation. If there is still no response, within days a High Court writ is issued. I have spoken of selected extracts from High Court judgments. I have no doubt that if this Bill is passed another insert in the letter will be a copy of subsection (8) and the penalties that attach to it.
I am sorry if I appear to hog this debate to some extent. The Copyright Act, 1963 — and I make this statement advisedly — has become a blank cheque for the organisations representing copyright owners. It enables them to extract substantial sums through the methods I have mentioned. From one group in 1981, the total amount extracted in royalties and licence fees was £4.5 million and 94 per cent of that money left this island. The address of the organisation in that particular case is 29-33 Berners Street, London WIP4AA. The principal organisation representing copyright owners in this country is a British based organisation.
I want to raise a further point with the Minister. In the debate on the Copyright Act, 1963, three Deputies concentrated substantially on it. They were the Minister for Industry and Commerce, Mr. Jack Lynch, later Taoiseach, Mr. Liam Cosgrave, later Taoiseach, and Mr. Declan Costello, who is now a High Court judge. One thing which was obvious during the lengthy debate in 1963 was the concern of the people involved in the debate to ensure that there would be a balance and fair play in the legislation that would emerge. They were seriously concerned that a monopoly position should not develop where the owners of copyright material were concerned. They were at pains to stress that, if a monopoly situation developed, the Oireachtas would be prepared to take steps to cope with it.
I should like to make it quite clear that a monopoly situation has developed both for licensing and the performance of copyright material. Organisations representing the owners set their own charges, which are excessive in many cases and indiscriminate. They are self-appointed bodies. Their decisions are arbitrary. There is no input on the part of users. They act in a judicial capacity. There is no right of appeal against their decisions by the affected interests. In view of the fact that they act in a judicial capacity, that they are a monopoly that there is no right of appeal against their decisions, a major constitutional issue is raised.
I have no intention whatsoever of adding another piece of equipment to an armoury already used ruthlessly against people who are quite defenceless. Senator Lynch may have an interest in what I am about to say. I was asked some time ago to make representations on behalf of a certain person whose name I will not mention. He is in his middle fifties and he has a strong attachment to everything that is good in our history and traditions. He has a piano on his premises and he plays it just for the love of it. His preference in music is for Moore's melodies and traditional Irish music, all of which he believes is non-copyright material. He was approached by one of these organisations. He offered to pay them a reasonable fee just in case he was infringing the copyright of anybody. He listed the music he plays and sings on his premises and asked them if this music was copyright or non-copyright materials and they refused to say.
I was asked to make representations on his behalf. This will lead me to the uselessness of Part V of the 1963 Act. However, in the course of my efforts to ensure that this man got justice, a High Court writ was sent to him. Being a timid man, he paid up. He was also informed by the people who visited him that, if he did not pay up, they would get an injunction against him, that the Garda would arrest him and close down his premises. That is blackmail. It is the kind of blackmail that I am not prepared to see reinforced — if there is a danger that it would be reinforced — by the passage of this legislation.
I want to talk briefly about the protection that is supposed to exist in Part V of the Copyright Act, 1963. If this protection was effective, and if the intention of the Oireachtas when debating Part V was realisable, it would not be necessary for me to be making the arguments which I am making. It does not provide the protection which it was intended to provide. In sections 31, 32, 33 and 34, there was an adequate opportunity to protect the interests of the people I am concerned about.
As reported in the Official Report of 14 February 1963 at column 1466, Deputy Lynch, Minister for Industry and Commerce, in replying to an argument by Deputy Declan Costello said:
Where there is a reasonable dispute between the groups representing the copyright owners and the users about the terms of a scheme, common sense requires that the dispute be determined by the Controller on the basis of what he considers reasonable. There should be no limit to the right to bring such matters before the Controller and in drafting the section, we are following, in effect, the British law.
There was a proposal by the Government at that time that there should be an appeal body known as the Controller of Industrial and Commercial Property. In Britain the appeal machinery is exercised by a tribunal. There was an argument as to whether we should also have a tribunal. It was accepted that the Controller of Industrial and Commercial Property would fulfil the functions a tribunal was fulfilling in Britain.
I have had the frustrating experience of contacting this office and being told repeatedly that they do not deal with private cases, that they deal only with representations from an organisation representing the users of copyright material. I requested an organisation of users to contact them and, in the course of a reply, we were told there is provision under section 32 of the Act for reference of a licence scheme to the controller where a dispute arises with respect to a scheme between the licensing body and the organisation claiming to be representative of persons requiring licences under the scheme. However, if a dispute arises about charges, it would appear that the price control legislation is the vehicle through which a dispute should be pursued. This is another aspect of it. I was told very clearly that, despite my representations, individual cases were not dealt with by this office. Section 34, subsection (4) provides:
(4) Any person who claims that he requires a licence in a case not covered by a licence scheme, and either—
(a) that a licensing body have refused or failed to grant the licence, or to procure the grant thereof, and that in the circumstances it is unreasonable that the licence should not be granted, or
(b) that any charges, terms or conditions subject to which a licensing body propose that the licence should be granted are unreasonable,
may apply to the Controller under this section.
The section refers to a person. I am told it can only be an organisation. Therefore, the protection intended by the Oireachtas in Part V of the Act is not operational. I do not know whether this is by oversight or by interpretation. That is what happened in this case. We were told anything relating to charges was a matter for the National Prices Commission. I was also given this information by the Office of the Controller of Industrial and Commercial Property. I went on a deputation to the National Prices Commission who sent me to the Patents Office. Nowhere in the 1963 Act is the Patents Office mentioned. It is the Controller of Industrial and Commercial Property. The point I am making is that protection is non-existent.
The then Minister said in 1963 that we were following British legislation. It is interesting to recall how the interests of users are protected in Britain. They are protected under the Copyright Act, 1956. When the Bill was being debated in the House of Commons on 4 June 1966 the President of the Board of Trade said the function of the tribunal was to protect the general public from the Performing Rights Society. My experience of dealing with what is supposed to be a similar organisation or a similar office in this country is that their understanding of their position is that their first duty is to protect the Performing Rights Society from the general public, and not the other way around as would appear to be the situation in Britain, and would appear to be the intent of the Oireachtas in 1963.
I want the Minister to clarify the question of the payment of double royalties. I am referring to this in relation to television and radio. Section 19 of the 1963 Act says there is no breach of copyright unless the audience pays to see the transmission. Section 52 (1) provides:
Where a sound broadcast or television broadcast is made by Radio Éireann, and a person, by the reception of that broadcast, causes a sound recording, whether made before or after the commencement of this section, to be heard in public or to be transmitted to subscribers to a diffusion service, he does not thereby infringe the copyright (if any) in that recording.
Yet organisations representing copyright owners insist on collecting almost £500,000 a year — I gather the figure is £495,000 — in royalties from Telefís Éireann for export across the channel. They insist on collecting another fee from the receivers, provided the television set or radio is in what is deemed by that organisation to be a public place — not a public place as defined by the Act, because the Act does not define it.
As far as I can see section 19 excluded these double payments. If it did not, section 52 surely has some relevance. These payments are obtained by the use of High Court writs. I want to contrast that with the position as it applies in Britain. I am using Britain because Britain is the home of the organisation I am concerned with here. It is not an Irish organisation although it represents itself as one. It is simply an offshoot of the organisation whose address I gave a few moments ago. It does not even have representation on the board of management of that organisation. An observer delegate goes over there, but that is all. In its home country it is not allowed to do what we allow it to do here. The Act governing copyright in Britain is the 1956 Act. A commission which considered the whole question of copyright in later years was chaired by Mr. Justice Whitford. That was followed by a Government Green Paper. Their position on what I describe as double royalties in relation to television is best expressed by the following quotation from that Green Paper:
The BBC and the IBA pay copyright owners on the basis of the whole potential audience for their transmission. It would therefore be inequitable to allow an additional payment of copyright royalties in respect of what is essentially the same communication to the same public.
RTE pay £495,000 a year to that particular organisation. It is still not satisfied. It extracts a double payment. On my reading of the 1963 Act it is acting illegally in doing that but, because Part V of that Act does not operate, the people affected have no protection. In fairness to Senator Lynch and other people who play traditional music only on their premises, could the Minister clarify the position in relation to the copyright ownership of traditional music, if any? That is essential.
During the course of my research on the 1963 Act I came across the quotation used by Senator Dooge from Colmcille: "To every cow its calf; to every book its copy". I have no dispute whatsoever with that. I am disputing the legitimacy of the rights of those who own the cow. That is what is in question. If they can satisfy me and others that they own the cow, they are entitled to the calf. But they steadfastly refuse even to enter into a discussion on whether they own it.
I am satisfied that Part V of the 1963 Act is a failure and I look to the Minister for redress. It does not operate. The Controller of Industrial and Commercial Property — and I am referring to the office; I do not know the individual concerned — does not perform as intended in the Act and in the Oireachtas debates during its passage. If the Minister cannot succeed in getting that office to operate as it should be, obviously it cannot be denied that the time for change has arrived.
I would like the Minister to consider the abuse of monopoly which I have outlined. This was a matter of considerable interest to the Members of the Oireachtas who debated the 1963 Act. I am concerned that the application of what is proposed in subsection (8) is much wider than was intended by the Minister. I am satisfied that it can be misused in the directions I have outlined.
I have no objection whatsoever to the payment of royalties or licence fees where I am satisfied that they are genuinely due. But the absence of an appeals machinery, monopoly abuse and monopoly power, are matters that need to be rectified. I invite the Minister to amend subsections (8) and (10) (a) and (b) so that the increased penalties will have application only in relation to video pirates, and stop penalties being used to perpetuate and exploit an unjust situation which has emerged and which clearly was not intended by the Oireachtas in 1963 or by the Oireachtas today. I want him, secondly, to examine the non-operation of Part V of the 1963 Act and to amend these sections to ensure that users get the protection which was intended under that part of the Act.
Thirdly, I want him to examine the monopoly position of organisations representing copyright owners, their methods, their practices and their operations. Fourthly, I should like him to clarify why a double charge on radio and television is permitted — a double charge on RTE in the first place and on receivers in the second place. The opposite applies in the United Kingdom, the home base of the organisation that can enjoy advantages and privileges here which it is not permitted by its own Government to enjoy in Britain.
Finally I want to clarify the position in relation to traditional music: what is copyright and what is non-copyright? The Bill is intended to deal with an objectionable practice of video piracy and I fully support it, but I seek from the Minister an assurance that in taking that step we do not inflict an injustice on people who are already exploited.
