I have read with interest a speech by the former Minister of State, Deputy Rabbitte. While I do not want to go through it all, he made the point that the original intention of copyright was to protect free speech. The first Copyright Act of 1709 was introduced to take away from the State the monopolistic position it had, whereby the State had copyright on everything and one needed permission from the State in order to publish. Therefore, the State decided what was published. The new Act of 1709 was quite a revolutionary idea. Later on, however, in the 19th century, the point was made that copyright was perhaps an inhibition to free speech. Lord Macaulay said that it restricted the incentive to authors to be creative because they could live off their laurels forever.
While I appreciate the complexities of all this, in my political career I have always been fascinated by the way in which legislation, by defining terms, turns language on its head. I cannot accept that computer software is literary work. It is an invention that should be patented, but it is not literary work that should be copyrighted. Computer code is not literary work. I first adverted to this peculiarity of legislation when we ended up defining a crossbow as a firearm, which it manifestly is not. Equally, defining computer software as literary work is a nonsense. It is not a nonsense in that it is what the law says it is, but logic and commonsense suggest otherwise. We are using a law which was intended to defend the creativity of individuals – and which perhaps defends it excessively – to defend a large business interest.
I am intrigued by the fact, for instance, that the pharmaceutical industry, which spends vast sums of money on research and development of new drugs, and then has to go through an equally expensive testing and approval regime, finally gets a product into production and has 15 years at most of protection before every single competitor can copy and mimic the product and sell it themselves. Incidentally, I teach people who work in that industry so perhaps I had better mention that fact, as the Cathaoirleach earlier made pronouncements about declarations of interest.
I would love to know what rationale suggests that Bill Gates and his allies deserve greater protection than that. I am not arguing for a non-regulated system. People who do things that are different are entitled to be protected, but I am not convinced that there is any basis for saying computer software should have similar protection to a work of art or a literary work. It is of considerable inhibition to the functioning of a real market in the area of software development. If software were to be patented rather than copyrighted, which is what it should be, then after 15 years the ancient versions of Microsoft Word, Microsoft Excel or any other software, would come out of patent. It would, therefore, be a considerable incentive to competitors to modify or copy the older versions. This would produce an enormous incentive to Microsoft to seriously innovate for the benefit of its customers. Nobody would believe the dominant marketplace player innovates to suit itself. In order to force its customers to catch up and to buy new products, which customers do not believe they need, software manufacturers change their codes to require people to buy new code if they are to handle new products. The old code remains copyrighted for 70 years, which means that the normal commercial push towards innovation does not apply. We will regret that in the long-term.
This is extremely important. We are being driven into a situation where something conceived and developed to encourage creativity and to facilitate free speech is now becoming a commercial protection for large and multinational organisations which have a quasi-monopoly in the software and information technology area. I do not suggest that a small country on the periphery of Europe should change its views about that, but we should begin to work in international fora to ensure that items such as software are treated appropriately. They are items to be patented in the same way that the multinationals working on the final breakdown of human DNA will be allowed to patent the development. It is a scary prospect but they will only be allowed to patent their development, which grants them perhaps 15 years rights. They will not be allowed to copyright it – which is quite correct – although let us wait and see whether in the next ten years they plead the scale of their investment when looking for copyright protection as distinct from patent protection.
I always listen to Senator Quinn with great interest and he made a point I was about to make when he said that Ireland is still running faster and faster to catch up in several areas. Copyright is one of those areas, although I appreciate that other countries are trying equally hard to catch up, particularly with regard to computer software and the performing arts. However, it is slightly embarrassing that the real reason for rushing through the Bill is that Ireland is in danger of lawsuits from at least three different international bodies.
I heard someone on the radio at lunch time talk about the Cablelink sale and he used more clichés in a sentence than anyone I have heard in a long time. He included the millennium, the information superhighway, information technology and six other current clichés in one sentence, which was a considerable achievement.
If we wish to be at the forefront of information technology development, we should not define the forefront in excessively simple language. We should also recognise that we cannot be reactive but that we must be proactive – we cannot wait to see what happens. Much of this Bill serves to catch up but others will be innovating while we catch up and we will spend our lives trying to catch up with them. It is regrettable that this week the OECD identified our technological and electronic infrastructure as being close to the bottom of the list of developed countries. That is not the way forward and no amount of expressed intent will get us away from being near the bottom.
If we want to be at the forefront we cannot only do so at home but we must do so internationally. If all the changes in information transmission are truly what they are supposed to be, a great boon to consumers, then we must make sure the rights of consumers are protected. I am not a great enthusiast for the marketplace but if it works it should not just protect producers but also consumers. Global consolidation is the phrase used, although Marx and Lenin would have called it imperialism. Perhaps we do not use such language any more. In a period of global consolidation, when the players in the marketplace are so huge that they have market power, the only power that can protect the consumer from abuse of that position is either that of states or supranational organisations, such as the EU. The trouble is that most international agencies pretend that the marketplace exists and leave many of these problems to that marketplace. That does not work.
There is no other area of commercial activity where there are so many dissatisfied customers as in software support. Large numbers of people write to computer magazines about the appalling support they get from software companies. There are delays, postponements, procrastination and a lack of answers. If one reads the computer magazines in Eason's one finds this common theme. It is a consequence of the large scale and the presumption that they are not obliged to be responsive to customers. Software can be sold with a computer and problems with the software are not to be addressed to the software producer but to the hardware producer. It is as if one bought compact discs with a CD player and was told to argue with Sony about the quality of the music. It is quite peculiar.
Markets only work if there is a balance between consumer and seller. If there is not, one either has dominant consumers, which oppresses the seller, or the reverse, which is increasingly the case. The producer or seller is dominant and can manipulate the market. What economists call a properly functioning market is one in which no producer can have an effect on that marketplace by leaving the market. A properly functioning free market should not have its functioning affected by the departure of any seller from that market. If one thinks about recorded music or software sales in those terms, one realises we do not have a properly functioning market. Regulation must, therefore, deal with much more than the protection of the rights of producers of computer software.
I welcome this Bill and admire the work done by the Minister of State and his staff in producing it. I always say this about large and complex Bills. When I get an opportunity to discuss such legislation with the public servants involved in producing it, I am enormously impressed by the quality of support staff in our public service. I am continuously astonished by the quality of their work. I am the first to point out deficiencies but nobody should deny the fact that the work done is extremely good. If there are any real problems with public policy issues relating to legislation they should be laid at the door of the politicians. Deficiencies in the quality of service available to Ministers can never really be the problem. If we under-resource the parliamentary draftsman's office, we should not blame it if there is a delay in the production of legislation. The political decision not to resource the office adequately is the cause of the delay. The people who work in the civil service do an extraordinarily good job.
The Bill repeats presumptions about the future of the world which I do not share. It is generally presumed that the Internet will be used greatly in the future but I am not so sure. I know of no country where domestic users of the Internet are happy with the service it provides. It is either too slow or too expensive or it takes up telephone lines which are needed by other members of the household. I heard an American satirist say that he has developed a new satirical animation set in the year 3000. He said the Internet still exists in the year 3000 and yes, it is still too slow. Anyone who uses the Internet, as distinct from those who write about it, knows that the idea that it is about to take over as a centre of commerce is ridiculous.
The Internet is a fascinating medium, full of possibilities and electronic mail is its greatest asset but it is not a mature technology and no one is sure where it will lead. The Internet is not as huge a concept as television or radio in its time. It is slow and unreliable, as anyone who uses it to listen to American radio stations, for example, will attest. Even in the United States, where the Internet is at its most advanced, it still has no reliable system of interconnection.
The Internet is not a product of the marketplace. It was invented by the Pentagon, and the world wide web, the user-friendly face of the Internet, was developed by a physicist in the European nuclear research centre in Switzerland who had difficulty communicating with other physicists via the old wordy form of the Internet. When the cost, in time and money, of administering the web became too great it was transferred to the National Science Council in the United States and only then did the commercial sector begin to exploit it. It was invented and developed outside the market economy.
We must distinguish between invention and innovation. Innovation belongs in the market while invention belongs to the area of genius, imagination and creativity. Invention is protected by patent. Innovation should also be protected but only to the degree that it is different from invention. We do not protect our inventors as well as we protect the commercial exploiters of their ideas. I do not use the term "exploit" in a negative sense but merely in the sense of making money from an idea.
As well as being sceptical about the future of the Internet, I am sceptical about the ability of copyright law to extend to computer software. This is a contradiction. I have read the Bill and discussed it with several people but I remain confused by some of it. I wonder what some learned Supreme Court judge will do when he is presented with the reference to the Internet in this Bill. The decision to use the term in legislation is strange and should be discussed in detail on Committee Stage. I cannot produce a legal definition of the term "Internet". If it cannot be defined, it should at least be defined by function. Not everyone is agreed about what it is. It is a wonderfully anarchic institution – an anarchist's dream.
The Minister mentioned that the Bill "contains notify and take down provisions whereby, if copyright-infringing material is being carried on a service such as an Internet service, and the rights owners inform service providers that infringing material is being carried on that service, the service providers will be obliged to remove that material as soon as is practicable". How can an Internet service provider – a provider of a service to facilitate communication between computers – take down anything? The service provider is generally not the person on whose website the infringing material is contained. Perhaps the Minister means to refer to an individual website provider. To say that an Internet service provider should be responsible for dealing with copyright contravening material is like saying that Telecom Éireann should be blamed for obscene telephone calls. It is not the fault of the service provider if people use the service to distribute material which is pornographic or which breaches copyright. Website owners are not always Internet service providers. Even if they were, the idea that website owners must be legally responsible for the content of their websites is dubious. One might as well say that the landlord of a premises on which bootleg tapes are sold is legally responsible for that crime. No one would suggest such a thing. This aspiration needs to be considered further and I hope we will return to it on Committee Stage.
Some aspects of the Bill concern me. I am most concerned about sections 55, 56 and 99. Sections 55 and 56 allow educational establishments to do various things with copyright material which are not regarded as infringements of copyright while section 99 deals, for example, with the provision of copyright material in Braille for those with special needs. These are fine provisions but they are heavily qualified by a reference to section 166 such as to make them meaningless.
Section 55(1) states:
A fixation of a broadcast or a cable programme, or a copy of such a fixation, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without infringing the copyright in the broadcast or cable programme, or in any work included in the broadcast or cable programme.
That sounds wonderful except that subsection (2) states:
This section shall not apply where there is a licensing scheme certified under section 166 and the person making the copies knew or ought to have been aware of the existence of the licensing scheme.
Section 56, which deals with reprographic copying by educational establishments of passages from literary, dramatic or musical works, states that not more than 5 per cent of any work may be copied. It also states, however, in subsection (3):
This section shall not apply where there is a licensing scheme certified under section 166 and the person making the copies knew or ought to have been aware of the existence of the licensing scheme.
Section 99(1) states:
A designated body may—
(a)make a copy of a work for the purpose of modifying that copy to meet the special needs of a person who has a physical or mental disability, and
(b)supply that modified copy to that person,
without infringing the copyright in that work.
No civilised human being would object to this, except that section 99(3) states:
This section shall not apply where there is a licensing scheme certified under section 166 for the purposes of this section providing for the grant of licences.
This is an invitation to set up a licensing scheme to seek money from educational establishments and bodies attempting to provide facilities for the blind and the handicapped for something that sections 55, 56 and 99 appear to suggest should be done for nothing. The subsections concerned should be removed. We should not allow a licensing body to be established by the back door which can then compulsorily insist on a charge. I have no idea why this self-contradictory phrase has been inserted in three sections which have a good intent.
I am profoundly sceptical about licensing bodies. I have too many friends who are musicians who play music well, mostly traditional, who have recorded good quality material but who have no interest in joining IMRO which is claiming royalties on the records of theirs that are played. Because they are not members of IMRO they are not entitled to the revenue claimed on their behalf. That is what I call a peculiar arrangement. It does not defend anybody's intellectual property, it defends the interests of IMRO. We should be very careful about licensing arrangements.
There is a peculiar attitude to the marketplace in Irish society. Those who advocate the market like some things about it. I always think of the eminent advocate of competition whom we dispatched to the European Union as our Commissioner and who has held a succession of lucrative jobs, all of which have one thing in common – he never had to compete with anybody to get them. Most of our economists work in academic institutions where there has not been a competition in 20 years and there is no market measure of their performance but they write of others being subject to them.
In the United States many of the rights attached to copyright are covered by generous exemptions. American universities run radio stations and they are not regarded as infringing copyright. There would be a howl of outrage if such a proposal was made here. Veterans' hospitals also broadcast music without infringing copyright. A practical approach is adopted to allowing exemptions, unlike the European Commission which has been too attentive to the special pleadings of copyright owners. The functioning market economy model that most people in Ireland look at is the United States but it is always the competitive side, not the compassionate or common sense side.
In the Bill there is a presumption that everything is covered by copyright unless proved otherwise, usually, although not always, by a consumer. The position is different in the United States. One has to register copyright in the Library of Congress. I find it fascinating that the most successful market economy has taken a different view from that of a less successful economy. I am not keen on the downside of the market economy but I find it strange that we would go the route of presumption of ownership of copyright rather than saying that copyright, like limited liability, is a right but it is up to the individual concerned to take the necessary legal steps to assert it. The system is loaded in favour of the copyright owner.
There is a considerable number of strange terms in the Bill. We cannot go on forever without defining "programme". The nearest is the definition of "computer programme" which is a programme for a computer.
Section 12 states that where a body corporate is guilty of abuse of copyright, with individuals within it, it will be liable to legal action. It is not just individuals on side streets who are involved, there is copyright abuse on a grand scale. I would like to compile a register of all the software in third level institutions and be assured that it is all covered by copyright and licensed.
Section 14, which deals with the service of notices on those deemed to be in breach of copyright, does not make provision for the electronic communication of such notices. If we are developing a secure and reliable Internet, we ought to leave open the possibility of using the simplest and most efficient way to serve notices.
Section 23(2) – which is, apparently, already controversial – deals with inhouse journalists and the right of newspaper owners to copyright. It would be quite improper for a journalist to be able to publish something on the Internet before it was published in the newspaper by which he was employed, and the present wording does not say he or she cannot do so.
I am not convinced there is much threat to the viability of newspapers as we know them by simply saying a journalist can use material he has supplied to a newspaper after it has been published by it for other purposes. It would be easy to amend the section to make it explicit that material could not be used. We could not have journalists working for a newspaper filing reports to an Internet service or website 12 hours before the material appears in the newspaper.
I suggest we find a provision which would at least ensure people who work for a newspaper would provide their copy first to that newspaper and give it the opportunity to publish first. I do not want a situation to develop whereby a journalist employed by a newspaper would write an article which would not be published but would remain the copyright and property of that newspaper and would not be seen by anybody. I am not sure that is right either.
On Committee Stage I would like to explore whether the question of ownership or the right to use material which a journalist has put together could be extended beyond newspaper journalists to those working in an equivalent capacity in other media, and I said this to somebody from the Department. I accept the Bill seeks to be non-technology specific but much of the language in it is based on literary concepts. I have a feeling the section about newspaper journalists is a leftover from a time when copyright was essentially about print. Perhaps we should look at this issue again and deal with the legitimate concerns relating to journalists employed by newspapers.
There is a famous story about an occasion in RTE when a major story broke which had global significance. The RTE news room could not find a journalist to cover the story because they were all on the telephone feeding it to whatever international organisation with which they had a subsidiary relationship. They were so busy doing that they forgot to do their primary job, that is, to organise the news for RTE. That should not be allowed to happen nor should any copyright exemption allow it to happen.
I wish to raise the very delicate and sensitive issue of traditional music, which is almost uniquely Irish in the developed world. There is hardly a country in the developed world with such a vibrant tradition of music. There is considerable tension among musicians who are not perhaps part of Senator Ó Murchú's organisation – I ask Senator Ó Murchú to excuse the terminology because I know he does not own the organisation but is affiliated to Comhaltas Ceoltóiri Éireann. They believe the licensing bodies involved have become quite oppressive in their determination about what is copyright.
We must be careful not to allow legitimate concerns about the intellectual property of musicians, composers, arrangers and record companies to get in the way of the spontaneity of traditional music or the degree to which it is a common tradition and to which no authorship may be ascribed. It is a changing tradition with new compositions, with music dying and being changed and with what was regarded as a traditional instrument changing. It would be very wrong to prescribe too tightly rules to protect most people but which would take away the right of ordinary people to play music which they have been playing all their lives.
Section 97 refers to photographs of television programmes. It provides that where they are taken for domestic or private purposes, they shall not infringe the copyright. The one place where photographs of television pictures appear regularly in the media is in connection with the operation of the Houses of the Oireachtas because television is the only visual medium through which people are allowed to see the Houses. One regularly sees still photographs of television screens of the proceedings of the House of Commons and the House of Lords. It would be a pity if we did not sort out that issue. I do not know if the arrangements under which the Oireachtas is televised could be organised so as to allow still photographs of the proceedings of these Houses to be used in the print media without being an infringement of copyright.
I was taken aback by the wording of section 107. Section 107(2)(b)(iii) states that the integrity right is not infringed "in the case of authorised broadcasters or authorised cable programme service providers, avoiding the inclusion in a programme which is broadcast or included in a cable programme service by those broadcasters or providers, of anything which offends public morality or which is likely to encourage or incite to crime or to lead to public disorder". That is reasonable for somebody who is a licensed producer of programmes, but a cable service provider is, by and large, an agency for the transmission of programmes. To say, for instance, that Cork Multi-Channel TV should be able to decide, if it sees fit, to cut or take out a programme because it believes it offends public morality is pushing good sense a little too far.
I supported the video censorship Bill when it was introduced in the House because there is a quantity and quality of material which is beyond what people should have to tolerate. This is still a modestly regulated area of broadcasting in which anything which is offensive to most people's view of public morality is encrypted, and encryption is well defended in the Bill.
The idea is that cable service providers should be allowed to edit, change, cut or remove programmes which they believe offend public morality. That is a much sloppier definition than anything contained in terms of the censorship of obscene publications. Even the concept of an offence to public morality is difficult. If we were to go through our legislation, the concept of an offence to public morality would leave much capable of being excised from programmes by cable operators. This section needs to be tightened up to do no more than meet the law of the land. It is reasonable that a cable operator should be able to remove from a programme, without breaching integrity, anything which is clearly in breach of the law. We must be careful in this regard.
Some of the films banned in this country were of no artistic merit, while one or two were. They will inevitably be broadcast by satellite television stations and probably ultimately by one of the British channels. Such films would have been banned for public display either in cinemas or for distribution in video form. I would not like a situation to arise where cable operators would decide what viewers could watch. I do not believe that is the direction in which we want to go and I think the section should be severely rewritten or omitted.
I wish to record my considerable unease with section 128 and the principle of giving private individuals the right to seize material because they think it is a breach of their property rights. I know the principle in the section is contained in the Trade Marks Act, but that does not make it right. It is quite a peculiar provision which does not exist in terms of ordinary property. For example, if I or Senator Coghlan think we own some land in Killarney, we cannot just walk in, evict those on it and say we want it back, no matter how pressing the circumstances. Indeed, if I went away for a month and found squatters in my home on my return I do not think I could simply kick them out. I know all the qualifications are included, such as the need to notify the Garda, etc., but I still do not like the idea of somebody being able to walk onto a premises, remove material and tell the person in possession of the material that if they think the removal is unlawful they should go to the courts. There may well be a remedy for a victim of an unlawful seizure, but I do not like the principle in the provision. It is excessive and disproportionate as it only applies when someone feels they cannot get an order in the District Court. I know the provision is supposed to enable people deal with bootleg sales persons on, for example, O'Connell Bridge. Such persons may not be present the following day and therefore it is not possible to get a District Court order. I have never believed that convenience or inconvenience should be a basis for changes in fundamental law. To give the power of law enforcement in such a vigorous way to private individuals is a very bad idea and I disagree with it.
The presumption that everything is copyright until proven otherwise should not be a basis for law. I have already mentioned my considerable reservations about copyright licensing bodies. They are a necessary evil, but we should be very clear that they should only represent and enforce the rights of people who wish to have their rights enforced by them. I hope we can explore this issue on Committee Stage. I do not think any copyright licensing body should have the right to take actions on behalf of people who do not wish them to act on their behalf and who do not freely choose to be represented by them. Neither should copyright licensing bodies have any right to take away from exempt bodies, such as educational bodies, the right to do things which otherwise would be an infringement of copyright.
I am quite taken by the peculiarities of the sections concerning the Houses of the Oireachtas and I look forward to the Minister's explanations in this regard. Section 181 provides that "the copyright in any enactment vests in the Government". I will never be in Government and my view is that enactments are passed by the Oireachtas, not the Government, and that, therefore, copyright in enactments should rest with the Houses of the Oireachtas if it is to rest anywhere. The practice may be that the Government runs the Oireachtas, but in reality the Government is supposed to be subordinate to the Oireachtas which is the supreme authority in the State. The Oireachtas regulates the Government, not the other way around.
An even more peculiar provision is that which says that copyright for Government Bills will rest with the Government while copyright for Private Members' Bills will rest with the Oireachtas. Government Bills are only published by permission of the Houses of the Oireachtas from funds allocated to the Houses. In my view, copyright in Government Bills and Private Members' Bills, once published, should be vested in the Houses of the Oireachtas. Also, the idea of trying to enforce copyright licensing legislation for Acts is senseless, counterproductive and quite undemocratic. For Committee Stage we should think again about how we could ensure that the integrity of enactments is not infringed while at the same time allowing the full and free use of Acts with the minimum of cost and licensing requirements. We should not place any inhibition in the way of people copying Acts. Copyright of enactments and Bills should rest with the Houses of the Oireachtas. The Government – I love saying this – has no role in the matter. Legislation is neither introduced nor passed without the approval of the Houses of the Oireachtas and everything about it is the property of the Houses and should remain so.
Section 187 concerns depositions. The defenders of Trinity College have already explained in the House the college's problems. I wish every institution in the State was as well defended as is the college of the Holy and Undivided Trinity in the House. Why deposit of copyright materials only relating to books? An obvious example highlighting the problem is Encyclopaedia Britannica which will no longer be published in book form but rather on CD-ROM. The admirable requirement to keep a record of everything that is published in book form will be less and less useful if we do not introduce an equivalent requirement to deposit other kinds of material.
The National Cultural Institutions Act, 1997, included some provision for a film archive under the aegis of the National Library. However, compulsion does not attach to the provision and currently the National Library does not have resources to store film. The National Film Archive is providing the service, for which it is not paid. Technology is making possible things which were impossible ten years ago. For example, film can now be transferred on to DVD. Therefore, the volume of storage or the cost of making an extra copy would not necessarily be as great. It seems there is a good case for extending the definition of materials to be deposited in certain libraries beyond books to include CD-ROM, DVD, etc. I would like the Minister to think about this. A huge part of the cultural record of western society is moving from written hard copy to computer based storage. Already there are magazines and newsletters which are exclusively produced on the Internet. There will be huge gaps in our knowledge if these items are not required to be deposited somewhere. I know the issue of enforcement arises, but without the proper legislative base nothing will be done.
I sit in awe of the ability of people to draft legislation such as this, but I am also sometimes in awe of the language used. I do not blame the Minister of State or his officials for it. I wonder from where the parliamentary draftsman gets it. I will not read it out, but the definition of what does not constitute a cable programme service in section 2(1)(b)(i) is among the most interesting I have read in a long time. It took me about an hour to figure out what it meant. I look forward to Committee Stage and to the Minister of State's reply.
I would like to hear a defence of the idea of computer software as a literary work, which it is not. If we are to torture the English language, let us at least do so for a purpose, not because it happens to be convenient. I do not see how computer software could be anything other than something which should be patented and protected for 15 years. Most computer software is out of date within five years. The only problem the owners of it have is the possibility that people might use earlier versions to understand more about their work and, in the process, compete with them. That could never be allowed. This is what happens in the pharmaceutical industry. Other areas of innovation and of equivalent high technology must live with 15 year patents. I do not know why the information technology industry must be different.