I listened to some of the comments by Opposition Senators in relation to this Bill on the Order of Business. I reiterate what Senator Costello said — this is a short Bill and I will explain why we are introducing it. However, a substantial Bill will be introduced shortly when the House will have an opportunity to discuss it as, indeed, will many people outside this House who have strong views on this legislation.
It is a particular pleasure for me to introduce this short Bill to the House, namely, the Copyright (Amendment) Bill, 1998. The primary object of this Bill is to make provision for certain changes in copyright law. These changes represent no more than a small first step in a major programme of reform of legislation in the area of copyright and related rights which I will be bringing before the Oireachtas in the coming months.
An effective, modern regime of copyright protection is essential to the economic health of any advanced economy in the information age. Copyright is often thought of mainly in terms of books and other written materials. While the protection of such traditional areas remains important, it is now true to say that copyright is an essential foundation of an increasingly information based commercial system.
Copyright and its related rights are designed to protect the essential economic interests of creators and owners of a very wide range of intellectual assets, including dramatic works, musical works, artistic works, computer programs, databases, sound recordings and broadcasts, as well as rights in live performances. Without a strong regime of legal protection for copyright and related rights the vitality of enterprise and employment growth in all these areas would be hampered or destroyed.
In Ireland, many thousands of jobs and many billions of pounds in exports in businesses of all sizes, depend ultimately on the ability of the owners of intellectual property to rely on the protection of copyright in order to secure their proper return on their labour and investment. Copyright protection is not a means which benefits large multinational businesses at the expense of consumers and of the community as a whole. Bearing that in mind, and given the enormous contribution of both the artistic and the high technology sectors, in particular, to the current success of the economy, Senators will, I am sure, require little convincing of the vital need for a powerful system of protection for copyright and related rights.
I am afraid to say that current copyright legislation is not up to the standard required to support our burgeoning information economy. The last substantial reform of copyright was effected by the Copyright Act, 1963, followed by the limited Copyright (Amendment) Act, 1987. In the area of performers' rights, the Performers' Protection Act, 1968, afforded limited protection to the rights of performers under the criminal law but did little to secure performers' rights in the civil field, at least in any direct sense.
In addition, some secondary legislation has been introduced in the form of regulations under the European Communities' Act with the aim of transposing certain European Communities directives into Irish law. The end result is that Ireland is facing into the information age and the 21st century with copyright legislation designed for the 1950s. I am sure the House will agree that this is clearly unsatisfactory. A copyright system designed for the 1950s cannot serve the needs of the cultural sector or of our modern information and entertainment industries; the more so when the principal Act upon which that system rests was expressed in technology specific terms appropriate to a period before the spread of videos, digital recording and the Internet.
The Government is totally committed to bringing forward without delay a new regime of protection for copyright and related rights in line with the most stringent requirements of the information age. This reform will be achieved for the most part in the forthcoming Copyright and Related Rights Bill, 1998, and it would, of course, be inappropriate to discuss the actual content of that measure in the context of the present Bill.
However, it might be useful if I were to indicate some of its principal objectives.
It is my and the Government's intention that the new legislation will provide for a clear, transparent and logical system of protection for copyright and related rights, for performers' property rights and rights in performances, moral rights in copyright works and for intellectual property rights in databases. The Copyright and Related Rights Bill will include clear provisions on the assignment and transmission of rights and on the licensing of rights. The existing provisions on infringement, offences, remedies and penalties will be replaced by a new regime clearly favouring the vindication of their rights by legitimate rights holders and allowing for the imposition of penalties which are realistic by modern standards in relation to offences expressed in clear and comprehensive terms.
As copyright is now at the centre of the exploding information economy, I am ensuring that the forthcoming Copyright and Related Rights Bill will be as "future proof" as possible, thereby permitting us to stay abreast of the rapid pace of technological change. We must bring into copyright and related rights legislation a number of European Union directives relevant to this area. We must also bring Irish law into conformity with obligations incurred under international law on copyright and related rights. I can assure Senators that it will be a specific objective of the Copyright and Related Rights Bill to bring Irish law into full conformity with all the EU directives in question as well as all relevant obligations under international law, including the Trade-Related Aspects of Intellectual Property Rights Agreement, known as TRIPs.
In view of its important and extensive subject matter, it will not surprise Senators that the Copyright and Related Rights Bill is set to be one of the longest and most complex non-consolidation Bills ever to come before the Oireachtas when, in the very near future, the lengthy process of its preparation is completed.
As for the matter at issue, both myself and the Government are very pleased to bring forward the present measure as a means of dealing with certain serious deficiencies in the existing legislation as a matter of urgency and, perhaps more importantly, as an earnest of its determination to achieve comprehensive copyright reform at the earliest possible date.
Turning to the copyright measures included in the present Bill, these may briefly be summarised as follows. The Bill contains two substantive sections. Section 2, which provides a replacement for the present section 26 of the Copyright Act, 1963, is designed principally to secure that a presumption as to the subsistence of copyright in a work which is clearer than that contained in the Copyright Act, 1963, is put in place, that a clear presumption in favour of copyright rightsholders taking civil actions for breach of copyright with the onus on defendants to rebut, is put in place, and that where a copy of a work carries or embodies a statement or mark identifying a party as the author, owner or exclusive licensee in relation to the copyright in that work, the identification thus established shall be presumed correct, with the onus on defendants to rebut.
The right of copyright rightsholders to take civil actions for breach of copyright will always be a vital part of the overall system of protection for copyright rights, and the provisions of section 2 are designed to establish clear presumptions which will facilitate copyright rightsholders in taking such actions.
The right to bring civil actions is only part of the answer to copyright infringement. It must be supplemented with a regime of offences and penalties of sufficient severity to constitute a punishment and a deterrent proportionate to the seriousness of copyright theft as a commercial crime in the context of the modern Irish economy. In consequence of this, section 3 of the present Bill amends section 27 of the 1963 Act, as amended by the Copyright (Amendment) Act, 1987, providing for a regime of penalties in respect of copyright offences very much more severe than that contained in the existing legislation. Specifically, it provides for fines of up to £1,500 per offending item or up to one years' imprisonment, or both, in respect of summary convictions for copyright offences in the District Court, and for fines of up to £100,000 or up to five years' imprisonment, in respect of convictions for copyright offences on indictment in the higher criminal courts.
Senators will note that the Government is proposing an amendment to section 3 to secure that all classes of copyright offence, and not only those involving infringing copies of works, will be fully covered by this new scheme of penalties. Senators will also note that it is not proposed to amend the specification of copyright offences contained in section 27 of the Copyright Act, 1963, in the context of the present Bill. This specification can only be modernised in conjunction with the general modernisation of copyright legislation and will therefore be dealt with in the forthcoming Copyright and Related Rights Bill.
Senators will agree that the present Bill is but a limited measure as far as copyright reform is concerned, but it must be judged in the context of the Government's copyright policy as a whole. Taken in conjunction with recent Garda successes in combating copyright piracy — on which I trust that the force will accept my heartiest congratulations — and with our commitment to urgent and fundamental reform of the copyright system as a whole, the present Bill should be seen as a clear signal of the Government's determination to see that a modern, effective and efficient system of protection is provided for copyright and related rights and that those who would profit unfairly from the fruits of the intellectual labours of others are confronted and defeated.
I now turn to the proposed amendments to the Bill affecting the Patents Act, 1992, and consequential amendments. Senators will be aware from the Order of Business that these amendments are the subject of a procedural motion. While the advice to the Government from the Office of the Attorney General was to the effect that these amendments were appropriate to an intellectual property Bill such as the Copyright (Amendment) Bill, 1998, it was decided to invoke this somewhat unusual procedure in order to remove any possible doubt as to the power of the House to consider these matters in the context of the present Bill. I want to assure Senators that the Government pursued this procedure in view of the urgency of achieving clarification of the legislative problem, which I will now proceed to outline. I want to record my profound gratitude to this House for its indulgence in confirming that these matters may be taken at this time.
The proposed amendments to the Patents Act, 1992, which relate to the conditions of tenure of office of the Controller of Patents, Designs and Trade Marks, are indeed some way removed from the immediate purpose of the Bill as published. In consequence, it is appropriate that I explain to the House the reason the Government believes it necessary to include them in the present Bill at this advanced stage of its progress through the Oireachtas.
The Controller of Patents, Designs and Trade Marks is responsible under statute for the maintenance of registers of patents, trade marks and industrial designs and for certain dispute resolution duties in relation to these registrable rights and to copyright. These responsibilities are exercised through the Patents Office, of which the Controller is head.
The operations of the Patents Office have in recent years been going through a phased modernisation on a broad front. A study of the office by the Centre for Management and Organisation Development of the Department of Finance and, more recently, a business process re-engineering study conducted by outside consultants, have suggested farreaching changes in the organisation of the work of the office. In the legislative field the passage of the Patents Act, 1992, and the Trade Marks Act, 1996, have modernised the systems of rights protection in these areas, with major implications for the work of the Patents Office. Finally, the move of the office to Kilkenny, which is scheduled to take place in August, 1998, will represent a major step towards the establishment of a modernised Patents Office in a new environment.
The various intellectual property rights entrusted by law to the care of the Controller of Patents, Trade Marks and Designs are of the first importance in promoting intellectual productivity, innovation and brand development in the modern Irish economy. Given the nature of the trust discharged by the office of Controller, it is clear that he or she must be independent in the conduct of the day-to-day business of the Patents Office, including the various processes involved in the maintenance of the registers and dispute resolution. However, the Tánaiste, as Minister for Enterprise, Trade and Employment, has responsibility as Minister of the Government to ensure that on the strategic level the office is managed to the highest standards and that the service which it supplies is at least as effective and efficient as that supplied by the equivalent services of Ireland's international competitors. This requires that, while independent operationally, the Controller must act under the general superintendence of the Minister for Enterprise, Trade and Employment.
In the course of the various studies of Patents Office operation and, in particular, in the context of administrative difficulties which attended the implementation of the Trade Marks Act, 1996, and which were the subject of some debate in the Dáil in March, 1997, uncertainties emerged regarding the relationship of the office of Controller with the Minister. In particular, it appears that the present controller understands his independence to extend so far as to exclude even general ministerial superintendence in relation to the functions conferred on the office by statute, that is to say, virtually the whole operation of the Patents Office. The relevant legislation currently in force, and in particular section 6 of the Patents Act, 1992, may support the Controller's view of the situation.
The position outlined above is unacceptable to the Tánaiste as Minister for Enterprise, Trade and Employment, to myself as Minister with direct responsibility for intellectual property matters and to the Government. It is unrealistic, on the grounds that the Minister for Enterprise, Trade and Employment is actually responsible under statute for providing the administrative resources required by the Patents Office. Under current conditions the Minister for Enterprise, Trade and Employment is unable properly to account for, and take responsibility for, the resulting expenditures before the Oireachtas. Also, the absence of any overall ministerial power of supervision leaves the Tánaiste, as Minister, unable effectively to discharge her responsibility to ensure that the very large part of the national system of protection for intellectual property entrusted to the Controller operates effectively and efficiently.
Furthermore, since by law the controller is a civil servant, it appears anomalous to the Government that the person holding the office of Controller should not be clearly subject to that general ministerial superintendence which applies to civil servants in general.
It is now proposed to address the situation by reinstating a legislative provision subjecting the Controller to general ministerial superintendence. This will restore the situation that existed prior to the enactment of the Patents Act, 1992, and will in no way undermine the Controller's responsibility for the day-to-day business of the Patents Office. It is also proposed to clarify certain other matters regarding the tenure in office of a controller which appear insufficiently addressed by existing legislation. These include periods of appointment, the status of the Controller as a civil servant, the basis upon which a Controller may be removed by the Government and the power of the Minister to specify where the headquarters of the Patents Office, its staff and the Controller should be located.
It may be suggested that the insertion of this material in the present Bill, which has already passed all Stages in the Dáil, is precipitate. In this regard, with the move of the Patents Office to Kilkenny due to take place in August 1998, it is in the interests of the good management of the office that any uncertainty on these points be cleared up prior to its relocation. In this context it is expedient to employ an intellectual property Bill which is already before the Oireachtas as a vehicle for the proposed measures.
This Bill, with the amendments proposed, represents an important step in the Government's programme to secure a modern and effective system for the protection of all aspects of intellectual property. The copyright provisions are the first stage of the comprehensive reform of copyright legislation. The proposed amendments to the Patents Act, 1992, will place the office of Controller of Patents, Designs and Trade Marks on a clear statutory basis and will make the proper accountability of that vital office to the Oireachtas a reality. Senators may be assured of my and the Government's determination to ensure that all aspects of Irish intellectual property law will be kept under review and updated where and when necessary. Only nations making good provision for the protection of the legitimate interests of work, consumers and investors in the labours of the intellect will flourish in the information age of the 21st century. I commend the Bill to the House.