Copyright and Related Rights Bill, 1999: Second Stage.

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

Last year I had the duty of presenting in this House what is now the Intellectual Property (Miscellaneous Provisions) Act, 1998, which effected important improvements in the regimes of civil remedies for copyright infringement and increases in penalties for criminal offences in the copyright field. In doing so, I promised that in the near future the Government would be bringing forward a further measure to effect a comprehensive reform of Irish copyright law, designed to bring this area of our legislation into line with the best international standards. It is in honour of that promise that I come before the House today.

I take particular pleasure in being able to introduce a legislative proposal of the greatest commercial and cultural importance to the Oireachtas through the forum provided by this House. Over the years, the Seanad has distinguished itself by providing the highest standard of debate and scrutiny over the wide range of legislation placed before it.

Mr. Ryan

Flattery will get the Minister everywhere.

I mean every word of it. In particular, I recall the well informed and constructive debate in this House on the 1998 Act, which I have already mentioned and which, although relatively brief, raised a number of points which illuminated the development of the present Bill in its later stages. I look forward to a similarly constructive and fruitful debate on this occasion.

Statute based intellectual and industrial property law is a subject which has commanded little public or political attention over the years. Yet the laws concerned with patents, trade marks, industrial designs and copyright are fundamental to the economic and cultural health of modern societies. These areas of the law protect property interests which could not be exploited to yield a fair return to their owners unless legal protections of this nature were in place.

To give a simple example, an original invention, once the inventor attempted to market it, could be freely copied without any payment to the inventor, were that invention not protected by a patent. Another example, from our more immediate concern of copyright, would be the creation of computer software; without the protection of copyright law, such a creation could be copied with impunity in a free public domain offering no financial recompense to those responsible for creating and developing it beyond what they could achieve in direct and, for the most part, early sales.

Clearly, in such an arrangement, the development – indeed, the very existence – of modern industry as we know it would be impossible, since the creators of the intellectual assets upon which it is based would have no financial incentive to invest in the development of their creations, either intellectually or financially. In such circumstances, the general cultural health of the community would be greatly damaged, since the incentive to produce many works of cultural benefit would be seriously undermined.

The role and justification for the existence of statute based intellectual property law such as copyright law is to put in place an enduring, tradable right which allows creators of and investors in the development of works of the intellect to secure a share of the revenue generated by the exploitation of their works beyond the first sale. Such a right is absolutely essential if creators and developers of intellectual property are to secure a fair share of the fruits of their labours. I reiterate that in putting modern and effective intellectual property legislation in place we are not addressing a merely peripheral concern to our economy and society, but one which is of continuing and fundamental importance, not just to their development, but to their survival.

The development of intellectual property law has been sadly neglected for long periods of the history of the State. The Industrial and Commercial Property (Protection) Act, 1927, was a landmark Act which gave the State its first independent legislation governing the various categories of statute based industrial and commercial property protection. However, the system established by the 1927 Act was left substantially unreformed into the early 1960s, when separate copyright, patents and trade marks legislation was passed. These reforms were prompted in part by the great quickening and expansion of the Irish economy in the late 1950s and early 1960s, and it might perhaps have been expected that they would herald a period in which intellectual property legislation was regularly reviewed in the light of increasingly volatile economic, technological and cultural conditions. Regrettably, this was not to be the case and it is only in the present decade that Irish governments and legislators have returned to the task of maintaining our intellectual property laws with a seriousness proportionate to their importance.

The Bill before the House represents perhaps the most significant milestone yet in a programme of intellectual property law reform in which, to their credit, successive recent Governments and bodies of legislators have tackled the mammoth task of modernising this area of our legislation. The Patents Act, 1992, modernised Irish legislation on the protection of patentable inventions, replacing in the process legislation dating from 1964. In 1996, the passage of the Trade Marks Act of that year performed a similar service for our trade mark law, bringing Irish law into conformity with outstanding obligations under European Union and international law governing the trade mark field in the process. I have already mentioned the passage of the Intellectual Property (Miscellaneous Provisions) Act, 1998, which brought about badly needed improvements to the Copyright Act, 1963, in relation to remedies for copyright rights holders for infringement of copyright and, in the criminal sphere, for penalties on conviction for copyright offences.

The final stage in this reform programme will be represented by a new Bill providing for the protection of industrial designs. This Bill, which is currently at an early stage of preparation in my Department, will replace a regime of protection for designs which, after all this time, is still based on provisions of the Industrial and Commercial Property (Protection) Act, 1927, the founding Act of intellectual property legislation in this State.

It will be evident that Ireland is already well along the road to having in place a modern, effective and efficient regime of protection for intellectual property rights in general, one with which we may meet the challenges of the new millennium with confidence. Furthermore, the Government is solidly committed to ensuring the neglect of former years will not be repeated and the expertise and resources required to maintain our intellectual property laws in good order will be provided. It is hoped that future Administrations will not imperil the health of Ireland's economy and society by doing otherwise.

Since copyright, for all its economic and cultural importance, is rather obscure and much misunderstood, it would be useful if I made some remarks on the subject in general, before introducing the Copyright and Related Rights Bill, 1999, itself.

Copyright is a species of legal protection which applies to a number of categories of work, principally the traditional "artistic" categories of literary, dramatic, musical and artistic works, and categories of works derived therefrom. Among the latter are computer programs, which are protected as literary works. Copyright has been explicitly recognised by the Irish courts as a property right. The fundamental justification for legislation in this area, apart from human rights considerations, is that unless the rights of creators of works of the intellect to secure a reasonable reward for their works of creation are protected, the community as a whole would be impoverished by the fact that, in many cases, these works would not be created or developed in the first place.

The term "related rights" in the Title to the Bill may also be somewhat confusing. This term covers a range of rights which have been derived from copyright principles. The first group are the traditional neighbouring rights of international copyright law. These can be described as secondary forms of copyright, such as rights in sound recordings and in films. The existence of a secondary copyright of this nature, for example in a sound recording of a performance of a song, does not affect the existence of the underlying, primary copyrights in the words and music of the song itself.

A second category of related right is that of performers' rights and rights in performances. This is a form of publicity right involving the right of performers to exploitation rights in relation to their performances, and the right of purchasers of, for example, exclusive recording rights in relation to performances to enforce such rights.

A third category consists of the moral rights which attach both to copyright and performers' rights. These rights, which derive from the European human rights law tradition, confer on authors of works and performers a right to be identified as author or performer, and a right to object in law to derogatory treatment of a work or performance, subject to certain conditions. Moral rights will be introduced into Irish law for the first time by the Copyright and Related Rights Bill in order to bring Ireland into line with the best standards set in international law.

A final category is that known as thesui generis rights related to copyright. These rights are usually somewhat more distant from copyright than the neighbouring rights, while sharing some technical or formal features with it. While copyright law world wide features a number of rights in this category, the only one to feature in the Bill is the database right, the introduction of which is required by the EU database directive.

The protections afforded by copyright and related rights work primarily by giving the first rights owner – that is the author of a work, a performer, the maker of a film or a sound recording, the maker of a database etc. – exclusive rights to authorise certain acts which are essential to the exploitation of the subject matter of the protection. In the case of copyright works, the acts concerned may, very broadly, be described as copying, although this may take many forms. Thus, an author of a work will be given the exclusive right to authorise the copying, distribution, and making available to the public generally of his or her work. This right is time limited but the duration of the protection is long. For example, for copyright works, EU law now requires that the duration period extend for 70 years beyond the death of the author. During that period, the author, or his successors in title or assignees, may transmit the rights or grant exclusive licences to exploit the work by contract. It is important to understand that, however trans mitted, the original rights will continue to exist in their original form, with their duration being measured in most instances in relation to the life of the author.

I emphasise that copyright is not a minor matter of regulatory law, rather it must be seen as a fundamental element in the foundations upon which the modern Irish economy is built. Apart from underpinning the creation of an orderly market in traditional literary, dramatic, musical and artistic works, copyright is also the principal means prescribed in EU and international law for the protection of rights in computer software, which is protected in effect under the category of literary works. The copyright and related rights area is also that prescribed by EU law for the affording of like protection to databases, another vital tool in the development of an information economy. In addition to this, neighbouring rights – such as those relating to films, sound recordings and broadcasting – and performers' rights and rights in performances provide a medium for the protection of a wide range of legitimate commercial interests in the media field.

With the advent of the information society, it is clear that the commercial value of materials protected by copyright and related rights law to the economy is enormous, not to mention the vast cultural benefit derived by the community from the creation of the protected materials concerned. The case for putting effective legal protection for copyright and related rights in place in the national interest is very clear. That there is an urgent need to reform our present legislation is also beyond dispute.

The last comprehensive reform of Irish copyright law was effected by the Copyright Act, 1963, which was closely modelled on the United Kingdom Copyright Act, 1956. Since then, three copyright related Acts have been passed by the Oireachtas. They are the Performers' Protection Act, 1968; the Copyright (Amendment) Act, 1987; and the Intellectual Property (Miscellaneous Provisions) Act, 1998. These, however, did no more than make detailed adjustments to the 1963 system, leaving Ireland in its present position of facing the 21st century with a technology specific Act drafted with the technological context of the 1950s in mind. While the Irish courts have been sensible and realistic in applying the terms of the 1963 Act to current conditions, it is clear that a legislative base of this nature is less than adequate to meet the challenges of the information society across a broad front. For this reason alone, comprehensive reform is required.

Another important reason why we need this measure is the great change in European Union and international law affecting copyright which has taken place in the past ten years. The EU was largely inactive in the intellectual property field until the late 1980s, when consideration of the policy challenges of the emerging new technologies began in earnest in the Commission. This process, which is still under way, has already pro duced a number of directives in the field of copyright and related rights, several of which are overdue for transposition into Irish law.

As regards international law, Ireland is a party to a number of treaties which specify standards of copyright or related rights protection to be observed by subscribing states. To date, Irish law has never been systematically modernised to bring it into full conformity with the obligations incurred under international agreements on intellectual property, including the Berne Convention in respect of copyright. This did not have much practical significance until recently. However, the coming into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights, known as the TRIPs agreement, which became binding on Ireland on and from 1 January 1996, has brought about a radical change in the position.

The TRIPs agreement is annexed to the Uruguay Round of the General Agreement on Tariffs and Trade. As such, the question of whether a TRIPs subscribing state is or is not meeting its obligations is subject to the dispute resolution understanding of GATT which can have serious legal consequences for countries found in default of their obligations under a GATT related agreement. Compliance with the TRIPs agreement specifically requires improvements in our regimes of civil remedies and criminal penalties in the copyright and related areas, as well as full compliance with all mandatory articles of the Berne Convention in respect of copyright.

The enactment of the Intellectual Property (Miscellaneous Provisions) Act, 1998, has gone a very considerable way towards bringing Irish law into compliance with the TRIPs agreement. Nonetheless, having carefully examined the matter, it remains the firm view of the Government that nothing short of fundamental reform of our outdated copyright legislation can bring Ireland fully into line with the standard required by this agreement. In summary, it is clear that for legal as well as economic reasons, it is necessary to bring about a root and branch reform of copyright legislation as a matter of urgency. The instrument of that reform is the Bill before the House today. I say that in the context of the historic nature of the Bill.

The principal objectives of the Copyright and Related Rights Bill, 1999, may be summarised as follows: first, to put in place a modern, effective, efficient, technology-neutral regime of statutory protection for copyright and related rights, including provision for civil remedies and criminal penalties fully sufficient to deter copyright theft, bearing in mind the economic and cultural consequences of such theft in the context of the information society; second, to transpose into Irish law a number of EU directives in the field of copyright and related rights; third, to bring Irish law into conformity with all obligations incurred under international law on copyright and related rights, in particular, under the Berne Convention (Paris Act), the Rome Convention, the TRIPs agreement, the World Intellectual Property Organisation Copyright Treaty and Performances and Phonograms Treaty; and four, to provide, for the first time in Irish law, for tailor-made regimes of civil protection for performers' rights, rights in performances and non-original databases in line with the best EU and international standards. Having prepared the text of the Bill with the greatest care, the Government is satisfied that it will achieve these ambitious objectives.

Part I – Preliminary and General – deals with certain technical and incidental issues, including interpretation of terms and the power of the Minister for Enterprise, Trade and Employment to make orders and regulations under the proposed legislation. Part II – Copyright – deals with the substantive provisions on copyright, including the traditional neighbouring rights of copyright in sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions of work. The main subjects addressed are the nature of copyright works, and works in which copyright may be held to subsist; authorship of copyright works and the duration of copyright protection in the various classes of copyright work; the rights of a copyright owner in relation to a work, including the exclusive right to authorise the copying, or reproduction, making available to the public or adaptation of the work, subject to the provisions of this legislation; primary and secondary infringement of copyright; and the various exceptions to be provided for, derogating from the absolute rights of the copyright owner in certain limited, specified cases. These are principally the "fair dealing" exceptions in favour of private research and study, criticism and review of works, incidental inclusion of copyright material in another work and limited exceptions in favour of educational and library and archival use, as well as certain uses in public administration.

This Part of the Bill also includes provision for moral rights, provisions governing dealings in copyright interests, including assignment and licensing, and remedies for infringement of copyright interests and criminal offences and penalties in the area of copyright and related technical issues, as well as a range of technical, incidental and subsidiary issues associated with copyright proper.

Exceptions to copyright and to related rights are legislative provisions which allow activities which would normally be regarded as restricted by copyright protection to be carried out without such restriction or the payment of copyright royalties, in very particular circumstances. Exceptions may be of a substantive, policy nature or may be technical – dealing with such matters as incidental inclusion of copyright materials in other works, for example, where a film is being made on Grafton Street and in the background music can be heard being played from a record shop. In such a case, where there is no deliberate act on the part of the film-maker to include that music in his or her film, the music is properly regarded as incidental to the making of that film. Its inclusion, therefore, does not give rise to any infringement of copyright in the music, nor to any requirement on the film-maker to pay royalties to the copyright owners in that music for the use of that music in the film. The Copyright and Related Rights Bill contains a number of exceptions, technical and substantive, both in relation to copyright and, in parallel, performers' rights and rights in performances and to the database right.

The Government is convinced of the need for a specific range of exceptions, both for technical reasons and as a small but important element in the process of balancing the interests of rightsholders with those of the users of protected materials which is at the heart of all copyright and related rights law. However, exceptions must remain strictly limited, principally for two reasons. First, copyright and copyright royalties are not like taxes – conditions and charges which may be imposed or remitted by Government at will. They are property rights in much the same way as rights in the ownership of other classes of property, and their status as such under Bunreacht na hÉireann has been recognised by the courts. A second reason why exceptions must remain very limited is that Ireland's obligations under EU law and international law, in particular under the Berne Convention, endorsed by the TRIPs agreement, place strict constraints on the scope for exceptions, requiring that they be specific and limited; that they must not interfere with the normal exploitation of the copyright works and that they must not prejudice the legitimate interests of the copyright owners. This restriction is, to some extent, flexible, nonetheless, it severely restricts Ireland's scope for enacting new exceptions or for broadening the exceptions already in existence under the Copyright Act, 1963. Discussions are ongoing in Brussels on a proposal for a new directive on copyright and related rights in the information society. The European Parliament recently completed its first reading of this proposal and voted to limit even further many of the exceptions already contained in the proposed directive. While Ireland would be far from agreeing with the extremely restricted scope for exceptions to copyright allowed by some versions of the proposed directive now under discussion, the Government would nonetheless feel that the confirmation of the general principle of strictly limited exceptions emerging from the negotiations to date needs to be borne in mind in our current legislative endeavour.

For these reasons, the free disposal by law of copyright and related rights interests through the expansion of the scope or range of exceptions is not an option under the Constitution or under EU or international law. For this reason, the Government would reject any suggestion that the exceptions proposed in the Bill as it stands be expanded. Indeed, the possibility that the Government may propose amendments to ensure that the exceptions included are targeted with the required degree of precision cannot be ruled out at this stage.

Part III – Rights in Performances – provides for a regime of rights, exceptions and sanctions in respect of performers' rights and rights in performances which is broadly parallel to those provided for in relation to copyright by Part II. It should be noted that the rights protected under this part may be described broadly as the exclusive right of a performer to authorise the copying or making available to the public of his or her performance and recording rights which involve the rights of persons who have exclusive recording contracts with performers to protection from damage through illicit recording. As I have already mentioned, Part III represents the introduction into Irish law, for the first time, of a comprehensive regime of protection for this category of right, including direct legal protection for performers and persons holding exclusive recording rights against illicit direct recording of performances, that is, what is often described as "bootlegging".

Part IV concerning performers' moral rights provides for a regime of moral rights protection for performers in relation to their performances, which is parallel to that provided for authors of copyright works under Part II. Performers' moral rights are afforded a separate part because they apply to performers' rights only. The concept of moral rights is not applicable to recording rights. Consequently, the incorporation of performers' moral rights in Part Ill could have posed serious technical drafting problems.

Part V concerning databases provides for a new regime of protection for non-original databases, as required by the EU Database Directive. Non-original databases are databases, the creation of which does not involve significant intellectually creative input. Examples would be simple alphabetical lists such as telephone directories. These would have been protected up to now under Irish law by copyright as literary works. However, the database directive requires that a higher standard of originality be applied to databases if they are to qualify for full copyright protection. This part will provide a somewhat more limited form of protection for databases, no longer meeting the copyright originality standard, in line with the rules set out in the database directive.

Part VI concerning the jurisdiction of controller makes provision for and expands the role of the controller of patents, designs and trade marks as a tribunal for the resolution of certain disputes regarding copyright licensing schemes.

Part VIl concerning technological protection measures provides copyright rights holders with rights and remedies against persons who unlawfully circumvent technological measures designed to protect certain copyright materials, for example, producers of counterfeit smart cards for tapping into encrypted satellite broadcasts and cable programmes, and persons who remove identifying rights management features, such as digital fingerprints and other electronic markers from copyright materials.

Mention of technological protection measures prompts the question of whether the Bill contains measures specifically designed to address the challenges posed by the information society and, specifically, by the new technological environment for the recording, copying and transmission of copyright works and performances, including the Internet. In this regard, it should be said that the entire Bill is designed as far as possible to be technology-neutral, so that it can accommodate the demands of the information age in the copyright field in a flexible and adaptable way. Apart from the provisions relating to technological protection measures already mentioned, some specific provisions are worth noting. For example, the Bill generally replaces the concept of publication of a work with that of making available to the public, to ensure beyond any doubt that situations of passive publication, such as the placing of material on Internet websites, fails within the scope of copyright law. Also, 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. If the service provider fails to do this, he or she will also be held liable for that infringement. I might also mention that the Bill explicitly deals with representations of works so as to ensure that, for example, digital representations of works, are properly covered. These examples show the Government's determination to address specific copyright problems associated with the new technologies as well as providing a strong general legislative environment for the protection of copyright and related rights in the information age.

I trust I have shown the vital importance of effective, efficient copyright and related rights legislation for the health of our economy and society in the information age, as well as the determination of the Government to secure that such legislation is put in place with the minimum possible delay. I look forward to this debate as a most important step in a major programme of commercial law reform which is already well on the way to rectifying the evils of past neglect and which will see Ireland enter the new millennium leading the world in its legislative protection of copyright and related rights and of intellectual property rights as a whole.

I commend the Bill to the House.

I thank the Minister of State for his comprehensive and detailed overview of the measures proposed in this very important Bill. This Bill is a comprehensive follow on from the Intellectual Property (Miscellaneous Provisions) Act, 1998. A review and overhaul of the basic Copyright Act, 1963, have been long overdue and, accordingly, I welcome the broad thrust of the Bill.

There was much mention earlier of a declaration of interests and the Cathaoirleach kindly informed us of the correct practice and procedure. I am not aware that I have any interests so far as this Bill is concerned. I have been consulted and two bodies have been in touch with me – the Business Software Alliance and the National Newspapers of Ireland. I do not hold a brief for either body, although both have made some important point which, with your permission, a Leas-Chathaoirligh, I will refer to in the course of my contribution.

The Bill is broadly in line with EU requirements, the Berne Convention on Copyright and the Agreement on Trade-Related Aspects of Intellectual Property Rights, commonly referred to as the TRIPs agreement. Copyright protection is of fundamental importance to our economy in general. It is vital for the software industry, entertainment, broadcasting, publishing and the cultural sector. It has important links with tourism and ties in with the ability of rights owners to protect copyright and related rights. Without such protection it would be impossible for anyone to invest in the products of the intellect on which our modern economy and society so depend, with any reasonable hope of a fair return.

I mentioned the software industry which makes the point that the Bill helps to bring Irish copyright law into compliance with EU and other international standards. That is accepted. The software industry appreciates the important reforms made to the laws as they relate to and affect software publishers' rights. That is something we would all support. They further state that the new damages provisions provide considerable scope for courts to make awards which properly compensate the rights holders and deter infringement. Equally importantly, they acknowledge that the Bill allows rights holders to obtain civil search orders without having to compromise their source of information which at present is a major block to the effective enforcement of copyright in Ireland. They also regard the Bill as an excellent reform that will go a considerable way towards modernising Irish copyright law. They have highlighted certain concerns they have relating to certain exceptions, distribution rights and the world intellectual property organisation treaty related provisions, which they hope will be addressed in the course of this debate.

I understand that Ireland is the second biggest exporter of software in the world, after the United States. Unfortunately, however, we also have the second highest rate of piracy, after Greece. That is not a good record.

Having said that, I would have some worries about the all pervasive presumption in favour of rights holders, in that copyright collection agencies could claim that they own copyright on a particular piece of music, until the contrary is proven.

Copyright is presumed to subsist in a work unless the contrary is proved. This obviously could have serious consequences for music users and players throughout the country. It could impact adversely on the session as we have come to know it and which is such a feature of the craic in Irish pubs. Ireland has a proud tradition which has provided us with a wealth of music, song and dance. However, modern methods mean there is a danger that much of it could be rifled. It could be digitised by unscrupulous merchants who could subsequently claim copyright. I do not want the passage of this Bill to assist in such robbery. We must guard against such possible theft rather than facilitate it.

I welcome much of what the Minister of State said and do not quibble with his wish to put stringent legislation in place which conforms to the most demanding requirements of the information age. However, we must be careful not to enshrine in law ownership rights to someone who may not have a valid claim on or right to ownership. We must be careful that the rights of our citizens are not inadvertently subverted.

I am worried by the precedent of shifting the burden of proof to the defence, as proposed by the Bill. I spoke about this last year during the debate on the Intellectual Property (Miscellaneous Provisions) Act. Bogus claims could be manufactured and unscrupulous people could conceivably get away with them. This is a matter of achieving the right balance. Nobody would wish to take from the creators and owners of intellectual assets and we accept the contribution of the artistic and high technology sectors to the success of the economy. It is accepted that current legislation is out of date and that the arrangements as provided for in the Copyright Act, 1963, is unsatisfactory.

We accept the need for the vindication of legitimate rights and provisions for the imposition of realistic penalties. I have no argument with the penalties in the legislation as the Bill will bring us into conformity with all EU directives and our obligations under international law. However, sections of the Bill may be in breach of the draft EU information society directive, which is currently being debated in the European Parliament. I am worried that there might also be a constitutional question.

The National Newspapers of Ireland contacted me and also wrote to the Minister of State. It probably sent him a copy of the senior counsel's opinion which it sent to me. Its concerns relate to section 23(2). The letter states:

Our principal concerns regarding the original Working Draft of the Bill related to the ownership of copyright in the work of employed journalists and the ambiguity contained with reference to the Internet.

However, the reformulated provisions of section 23(2) of the newly published Bill do not adequately address our difficulties and ultimately these would only be served by the deletion of any residual rights in favour of employed journalists.

Whilst the new provision obviously intends that copyright in all work generated by employed journalists will be owned by the employer in the ordinary way, the employed journalist is still allowed make use of the work in any way he/she pleases other than giving to another newspaper or periodical.

This revision, on its face, makes it easier for newspaper proprietors to pursue pirates, but while this may be so to some extent, clearly significant problems could arise.

Firstly, there is nothing to stop the employed journalist promoting his work in the public domain otherwise than via another newspaper or periodical (e.g. television or radio), thereby potentially mandating an employed journalist to undermine his employer in the marketplace in circumstances where it is unlikely that the employer could complain that such conduct amounted to a breach of the journalist's contract of employment or implied obligations as to confidentiality.

Further, because material may come into the public domain legitimately via the journalist who wrote the piece, there is considerable potential for pirates to muddy the waters if ever they are attacked for infringement of the newspaper's copyright by alleging that they came by the piece via another, more circuitous but ultimately legitimate route.

The provision as contained in section 23(2) is unique to the newspaper industry and does not apply to other media or other industries or professions. In almost every walk of life copyright in the work of an employee who is employed in a creative capacity belongs to the employer. This is the case for television filmmakers, for software writers, for copywriters in advertising agencies, for designers in a design studio and for journalists working in public relations, television and radio. NNI is asking for the same regime to apply to newspapers.

You will appreciate that the modern information society is leading to a convergence of media. Text, voice and video is taking place on news websites. The websites of broadcasters and others in the information business are competing directly with newspapers. Some publishers view section 23(2) as arcane in its perspective of news and information in this electronic age as it affords absolutely no protection to newspapers as competing businesses.

Irish newspapers must compete on a daily basis with imported newspapers (the level of which is the highest in Europe) and other foreign sources of information, the vast majority of which own, without qualification, the copyright of all material generated by their employees. It is essential that we be allowed to compete on a level playing pitch. This can only be effectively achieved by treating all employers equally in the proposed new legislation.

We can see that the NNI has serious concerns. I am anxious that sufficient time is allowed between Second Stage and Committee Stage to allow a more detailed examination so that we might decide on a suitable amendment or amendments. While I accept the need for this Bill and I compliment the Minister of State on his comprehensive statement, I plead for that time. This is important legislation and it is vital to get it right. We need over a month to consider this and Committee Stage should not be considered before the middle of June. I broadly welcome the measure but I ask for more time to consider this critically and objectively with a view to tabling amendments.

I missed the earlier part of the debate dealing with the declaration of interest. One of my day jobs involves running a computer software company that writes computer software programmes. I declare that lest it be construed as a conflict of interest. I agree with Senator Coghlan on allowing time between Second and Committee Stages and I do not doubt the Minister of State will take that on board. However, we should get this Bill passed before the summer as it is vital to have this legislation in place before the millennium. It is important to look at how copyright impinges on people in their day to day lives. When quoting from authors in this matter I will obviously give their names.

My main interest is the software area. In September 1997, Fiona Doyle, a solicitor in the intellectual property department of Eugene F. Collins, Solicitors, wrote inThe Irish Times as follows: “The law on intellectual property, the collective name for patents, designs, copyrights and trademarks, is becoming increasingly important in everyday business, especially in the computer sector and Ireland's rapidly expanding computer software industry depends heavily on both the patent and copyright laws for protection.” This is the case. Fiona Doyle noted the fact that our copyright law has failed to keep pace with commercial developments. The 1963 Act was rooted in the technology of the 1940s and 1950s which predated the computer and the Internet. These technological developments have had a great impact on the issue of copyright in this area. In 1993, European Union regulations extended the legislation to provide protection to computer programmes. These regulations stipulate that every original computer programme should enjoy the benefit of copyright as if it were a literary work within the meaning of the 1963 Act. The Minister has outlined why that Act is no longer effective.

The weakness in Irish copyright law is particularly dangerous because many of the major international software houses are based in Ireland. It is not acceptable that they provide employment in this country while organisations throughout Ireland pirate their software.

I recall Sam Smyth's book,Thanks a Million Big Fella, the cover of which featured a photograph of Charles Haughey shaking hands with Ben Dunne. The right to publish the photograph was contested in the courts by the Photocall Picture Agency. An article in The Irish Times in December 1997 reported as follows:

A Dublin photographic agency yesterday secured leave from the High Court to seek an order next Friday, withdrawing from sale copies of a new book by the journalist Sam Smyth,Thanks a Million Big Fella, and permission was granted. The agency claimed that its original photograph featured the former Taoiseach, Charles Haughey, shaking hands with the businessman Ben Dunne and that this photograph had been used and altered without its permission. It was claimed that the photograph on the cover of Mr. Smyth's book was a faked version of the original and the agency claimed that the fake was effected by digital image manipulation of certain figures out of the original photograph and by superimposing the face of the former Minister, Mr. Michael Lowry, upon that of an unknown bystander and by changing the background.

That case was won. The photographic agency sought a similar order against Independent Newspapers regarding the reproduction of the book's cover photograph on the front cover of theIrish Independent Weekend Magazine of 29 November 1997, because Independent Newspapers, through a solicitor's letter, had said it did not intend to publish the photograph again.

InThe Irish Times of December 1998, Denis Kelleher described a threat to music copyright as follows: “Some three million music tracks are downloaded from the Internet every day and this figure includes samples offered legitimately by record companies and also material from other sites which allow pirated copies of songs to be downloaded in breach of copyright”. The article described an attempt which was being made in the United States to stop the sale of an MPMan device known as Rio which would allow a user to copy music from the Internet. The device had been available through the Internet for some time but the American music industry was attempting to stop its sale in shops. It is unlikely that that attempt succeeded because a similar effort to halt the sale of twin track cassette recorders had been unsuccessful. It was ruled that such a ban would prevent the legitimate copying of cassette tapes. As Denis Kelleher's article pointed out, while the 1963 Act offers some protection to work distributed over the Internet, it is now obsolete. An unscrupulous trader could find a loophole in the law and use Ireland as a base to distribute pirated music over the Internet. This would be highly embarrassing and perhaps very costly.

The Guinness advertisement, "Anticipation", was the subject of a legal action in the United Kingdom. Mr. Mehdi Norowzian of Hanley Road, Islington, claimed there was direct evidence of copying of his work without consent in the Guinness stout advertisement which featured Mr. Joe McKinney dancing around a larger than life-sized pint while waiting for it to settle. The advertising campaign inspired a hit single record and pushed the Guinness group 1994 share of the total draught beer market in the United Kingdom to a record level. Mr. Norowzian's case failed because the judge ruled that the advertisement was not in breach of copyright but the legal costs in the case came to more than £200,000.

As the Internet becomes more widely used, more and more companies have acquired domain names by which they can be identified on the Internet. For example, Allied Irish Bank's e-mail address might be aibbank@iol.ie but the bank might register a domain name of aib.ie or aibbank. This domain name then becomes an important part of the organisation's marketing strategy. People have registered domain names which major companies might wish to use and then sold the right to use them back to the companies at a large profit.

In June 1998, UTV threatened legal action against RTE which was about to boost its signal into Northern Ireland. A solicitor's letter was sent to RTE claiming that RTE would be in breach of copyright, especially if the station beamed "Coronation Steet" into Northern Ireland where UTV had the right to broadcast the programme. A spokesperson for UTV said the company realised it could not stop RTE broadcasting in Northern Ireland but there were, nevertheless, copyright issues to be resolved. Copyright affects many areas of life and we are often not aware of it.

The Minister has outlined the need for copyright law. It will protect the creators of all intellectual property. Painters, artists and writers of computer programmes are entitled to be paid for the future benefit of their work. They are entitled to be paid for and benefit from the use, sale or reproduction, in its original form, of a computer programme, song or journal article that they write and to stop others from benefiting.

Where the author of a novel sells the publication rights to a publishing company revenue derives from sales of the book in contracts separate from the original contract between the author and publisher. If copyright law failed to provide continuous protection for the rights of the original party, the person who wrote the book, there would be nothing the author and publisher could do in their contract to prevent a purchaser of the book from copying or adapting the work or bringing out their own edition contrary to any intention of the author and publisher to confer exclusive rights on the latter. That was the situation prior to the introduction of modern copyright. The need for copyright legislation is, therefore, obvious and it needs to be updated as we move towards the new millenium.

The general objectives of the Bill are to put in place a modern, effective and efficient technology neutral regime of statutory protection for copy right and related rights, including the provision of civil remedies and criminal penalties fully sufficient to deter copyright theft, bearing in mind the economic and cultural significance of such theft in the context of the information society; to transpose into Irish law a number of EU directives in the field of copyright and related rights, and to bring Irish law into conformity with all obligations incurred under international law on copyright and related rights.

The Minister of State said that if we fail to adhere to the terms of an international agreement in one area, it would impinge on other international agreements. How would farmers react if they found out that GATT was not being implemented because the copyright provisions of a different agreement have not been put in place?

Without penalties for pirating the work of others there would be no deterrents. The law would be ignored as a result. The civil remedies and criminal penalties provided for in the Bill, although sufficient, should be reviewed regularly as the economy grows and values change. Prior to the introduction of the Intellectual Property (Miscellaneous Provisions) Act last year the penalties that could be imposed by the courts were ludicrous in comparison with the money that could be made. It is very important that we put a business structure in place to encourage companies operating in the computer and software industry to come here.

The Bill extends to 355 sections. Early last year in a wide-ranging consultation process the Minister of State made the draft legislation available to all interested parties in the music, literary and computer sectors, as a result of which many changes have been made. The legislation has been well received as a consequence.

Senator Coghlan referred to the role of the European Union. The issue of copyright is being debated in the European Parliament. The British MEP, Brian Cassidy, was quoted inThe Irish Times as saying that in almost 15 years in the European Parliament he could remember only one issue that sparked anywhere near the same fuss – the TV without frontiers directive which set European broadcast quotas. This legislation should fit in with the directive being debated which has completed its First Reading and may have an impact here.

The Minister of State failed to mention that Oireachtas copyright is being introduced. This will provide protection for Private Members' Bills and other works made under the direction or control of the Dáil or Seanad. The provisions relating to Government copyright are also clarified. Will royalties be attached to this right?

The Bill broadens the role of the controller of patents, designs and trade marks in dispute resolution and the administration of copyright and related rights law. Much clearer criteria in relation to licensing disputes have been laid down. The controller will have a new role in the maintenance of a voluntary register of licensing bodies which will contain information prescribed by the Minister for Enterprise, Trade and Employment, such as details of the scale of charges to be levied and classes of rights holder represented. The controller will also have the power to give consent on behalf of performers in certain circumstances.

These changes have staffing and funding implications. The question of funding, which should be adequate to enable the controller to do his job properly, should be addressed in the Bill. The Minister should not have to look for money from the Department of Finance each year in the Estimates.

I am concerned that the register of licensing bodies is to be voluntary. It should be mandatory. One particular agency is concerned about the manner in which business is conducted. Many small businesses have been frightened or bullied into joining these collection agencies and paying a certain amount of money. It may not be much money, perhaps only £80, £100 or £200 to some organisations. However, it is not right that organisations or individual collectors, who are agents for these organisations, can use bullying tactics, take on powers which they do not have and try to scare people into believing their interpretation of the copyright laws. Is there any way, in terms of regulations or codes of conduct, to regulate that side of the industry? Obviously, with a document such as this, the collecting agencies will become more important. We have considered schools and the possibility of including them in that they may have to pay royalties on certain photocopied material or music.

Other collection agencies may emerge which must also generate enough money to keep themselves in existence. I would like to see the existing agencies change some of their practices. I have deliberately avoided naming them so as to give them an option. If in future, they do not start to change tack, the House should address the issue because the way some of them go about their business is appalling. Officials will agree with me because if they were to record the number of complaints they receive, it would indicate that these agencies are not going about their business in a proper manner.

The Bill strengthens the range of civil remedies available to rights owners. It allows for civil search and seizure procedures, which should greatly enhance the effectiveness of civil remedies, and it shifts the burden of proof in infringement proceedings in favour of the plaintiff or rights owner, thus facilitating swifter and cheaper prosecution of infringement cases. Senator Coghlan said the shift in the burden of proof to the other side would cause him concern. However, it is very difficult to prove a case in the computer industry, in particular, and if we did not have this shift in the onus of proof, it would not be possible to implement copyright law and intellectual property rights in this area.

Members of the software association are here today, and I would like to ask them and the large organisations which make up their membership to remember that there are many small businesses in Ireland operating with pirated copies of software. They may have bought one computer and one set of software which they copied on to a second PC and when the business got a little larger, they copied on to the next PC. With the advent of the year 2000, many organisations are using this opportunity to buy proper licensed copies of software.

Small business is important and the Minister of State has a role in this regard. Perhaps we should have a period of grace whereby small organisations with a turnover less than a certain amount are given a period of time in which to put their affairs in order if they accept they have unlicensed software. If they are found with unlicensed software on a Monday, for instance, they should not be expected to have everything sorted out by Friday, otherwise they will be hauled into court and will have to pay penalties and damages.

Perhaps Mr. Bill Gates of Microsoft – I pick Microsoft because it is the largest organisation and I know the name of the owner – has forgotten what it is like for small businesses. It is important to remember that many of these businesses would not be in a position to invest £4,000 or £5,000 in a short period to update their software, but could probably do so over a longer period. That should be taken into account. When the Minister and his officials hold discussions with other interested organisations, which they will probably do between now and Committee Stage, they should develop that idea with them.

The Business Software Alliance, in particular, has been good about managing its affairs. It has worked hard with the Department on developing the legislation and sent us an issue by issue analysis of the Copyright and Related Rights Bill, 1999, which it also sent to the Department. Although I do not intend to go through it, it is the intention of the Department to go through the various points made to see if there is a need for changes to be made between now and Committee Stage. If changes are needed, the Government will table relevant amendments. Perhaps through discussing the various points, we may find that what the alliance is looking for is contained in the Bill and that we may need to explain it a little better. I look forward to seeing what changes we will make in the form of amendments.

Senator Coghlan referred to the newspapers, so I would like to deal with the Internet. The Internet provides the greatest challenge to copyright. Recently, we went on an information trip to RTE. It explained that many of its programmes are available live on the Internet throughout the world, although that has created a difficulty. When it showed one of the all-Ireland finals last year live on the Internet, it faced difficulties in the US. A television company in the US said RTE could not transmit the final live on the Internet because anybody in America could view it and that it had the rights to distribute the GAA finals and other such events in the US. It felt it was an infringement of copyright. This issue also arose in the RTE-UTV saga last November. The Internet presents a great challenge to us in terms of how we will manage it, what we will do to ensure copyright is protected and that something owned by somebody is not abused on the Internet.

The Minister of State said that one would have thought the legislation would have been reviewed as technology moved on, but it was not. We must learn from that and put in place a review mechanism which will ensure that every few years or so, a review of this legislation will take place. The Government of the day should be forced to put it at the top of its agenda rather than have a delay akin to the 1963 Act finally being changed in 1999. Perhaps the Minister of State will take that point on board on Committee Stage.

I welcome today's debate. I did not discuss music because I have colleagues who have points to raise on that particular issue. It is about time such a Bill was introduced. It is the first time I have seen such a substantial Bill, apart from the Finance Act. It is easy to read and I compliment the officials on the language used because most of it is easy to understand. Anybody picking up the Bill could probably make sense of it. It has taken so long to introduce because this is a highly complex area and, because of this complexity, I am sure the Bill is not yet perfect. I say that with due respect to everybody involved in drafting it. It must be flexible and one of the key points made by Senator Coghlan was that it must be balanced. It is important that we do not err on the side of going too far in one direction. I compliment the Minister of State on his commitment in this area. Last year he made some commitments which he is now fulfiling. We hope the legislation will be passed before the summer.

I compliment everybody involved in bringing the Bill to this stage and thank them for their kindness and generosity in terms of time yesterday evening when they provided briefings for us.

I wish to share time with Senator Quinn.

An Leas-Chathaoirleach

Is that agreed? Agreed.

I have two principal areas of concern, namely, retrospective copyright and the manner in which it affects, for example, the Joyce estate, and copyright in terms of the libraries in Trinity College.

It is a pity the Bill, which has over 190 pages, was only made available in the past day or so. I had to prepare for Private Members' Business last night while others were preparing for other things. Suddenly, this Bill was landed on us and we are expected to know all about it and make intelligent representations on it. It is unrealistic to do so in the short time made available to us. This might explain why the debate almost collapsed.

Chapter 3, section 24 concerns duration of copyright in literary works. A number of colleagues have a particular interest in music reproduction and intellectual copyright. This is a particularly serious area because of Ireland's quite extraordinary contribution to literature. Retrospective extension of copyright was granted without any consultation with either House. At the time I was aware that an instrument was being prepared by the EU with the intention of amending copyright regulations, and I asked the then Minister to alert me when this was going through. However, I did not hear a word and suddenly discovered that a statutory instrument, originating in Brussels, had been ratified dealing with intellectual copyright. Most of it related to computers, information technology and intellectual copyright, but one section dealt with literary copyright and purported to extend the ownership of copyright by an author's estate from 50 to 70 years after his or her death. This came at a time when, for example, copyright in the works of James Joyce had just expired. It was intended to retrospectively apply copyright again to his works, something which was extremely damaging and which had dangerous consequences.

I would like the Minister of State to expand on this point. An arrangement was made for a so-called window of opportunity – the period from when the original copyright lapsed to the purported re-insertion of material into copyright – whereby people who could demonstrate that they had plans in progress at that time for dramatisations, editions, etc. of the work of the late James Joyce could be permitted to continue as if copyright had lapsed. I would like a reassurance on this matter.

I also wish to raise the very tendentious and difficult nature of the James Joyce estate which makes a point of opposing every attempt to make use of the works of the late James Joyce in a way which is arbitrary, capricious and ill-informed, and which has nothing whatever to do with literary values. It continually frustrates performance in every possible way. It also frustrates scholarly work in a mean and spiteful manner. It is important that people are protected from this kind of operation.

I can give many examples of what happens. For Bloomsday last year, for example, I was contacted by RTE which wanted to run some small excerpts from Joyce's work accompanied by some commentary. The station was intimidated by the James Joyce estate which contacted it immediately. Last Bloomsday we organised the first worldwide, global Internet reading ofUlysses, which was a huge success. People from this House, the Taoiseach, Ministers and famous artists from all over the world took part. It started in Australia and followed the movement of the sun around the world. Ulysses echoed across the Internet for 24 hours. It was an enormous success and generated some money for the James Joyce Centre in Dublin. The reading was sponsored by Irish Distillers Ltd. Immediately, the James Joyce estate took action against us. There were no reasonable or cultural grounds for such action – it was a case of pure, unmitigated spite against which we should be protected.

What have the descendants of writers done to deserve to participate uniquely and dictatorially in the estate of a writer for 70 years after the writer's death? How far can this be stretched? Should I say I want to get something from every production ofDracula because Bram Stoker was my grandmother's cousin? It is absolute nonsense. I never met the man and have very little knowledge about him. Yet, I presume that genetically I could construct a claim. Why should a grandson, who until recently had never read a word written by his grandfather, suddenly have the right to dictate to everybody, to refuse permission to reprint or extract huge sums of money from anybody who dares to do so?

I have not had time to read the Bill in any great detail so I do not know if the question of fair usage is included in it – I do not think it is included. I would like the Minister of State to comment on this matter. English law, and I presume Irish law, includes the doctrine of fair usage, whereby one is entitled to make reference to and make use of limited quotation from the work of a deceased author without the payment of royalties or permission from the estate. However, fair usage has never been quantified or defined. Is it to be taken as a percentage of a work? Recently, the James Joyce Estate refused Aer Lingus the right to use one sentence from a letter written by James Joyce. Is this legitimate? Is this what we want? Do we want to give a grandson who was nine years of age when his grandfather died and who has very little acquaintance with the realities of literary scholarship, the right to arbitrarily say that even one sentence cannot be used? What is fair usage? It would help if the Minister of State examined this and, if there is no definition, sought to find one. This example is the one to which I am closest but literary copyright is always difficult. I am puzzled as to what right of inheritance in works of the imagination descendants can have. They can have it in terms of physical property, houses, stocks, shares and money, but a work of the imagination is different. It is the property of all people because it illumines all people. We must be careful in extending the right of proprietorship over this material if we are not to diminish ourselves as a cultural entity. This requirement did not come from Ireland. This was a directive of the European Union to which we conceded without considering it. At the time the original instrument was produced, several other European countries obtained derogations from it because they did not like it. We did not do so. This is something to which I will return at the appropriate time.

Copyright libraries are another aspect which is worrying in light of concerns held, especially by the library of Trinity College. I gather some approaches have already been made. I hope these concerns will be taken on board. I speak as chairman of the Friends of the Library of Trinity and I have been briefed by a senior member of the library staff. A general view, not just in Trinity but held by people who are interested in the issue of literature and copyright, is that section 187 will have to be removed. This is what happened in the United Kingdom in 1956. The new Act repealed all the 1911 Act with the exception of three sections, one of which was the delivery of books to certain libraries under which Trinity still claims. This has worked well until now and legal deposit has little to do with legal copyright, although it is contained in this large Bill. The titles of the institutions need tidying up, especially section 187(1), to allow the University of Limerick and DCU to be included and for which amending legislation was introduced in 1989. There should also be an amendment or redrafting to include the crucial wording required in section 187(6) and 187(10).

Section 56(2) of the Copyright Act, 1963, states:

The publisher of any book first published in the State after the commencement of this section shall also, if written demand is made before the expiration of twelve months after publication, deliver within one month after receipt of that written demand or, if the demand was made before publication, within one month after publication, to some address in Dublin named in the demand a copy of that book for, or in accordance with the directions of, the authority having the control of each of the following libraries, namely: the Bodleian Library, Oxford, the University Library, Cambridge, the National Library of Scotland, and the National Library of Wales. In the case of an encyclopaedia, newspaper, review, magazine or work published in a series of numbers or parts, the written demand may include all numbers or parts of the work which may be subsequently published.

It is essential that this, especially the last part – all the numbers or parts – is included in the Bill and I do not believe it is. Section 56(6) of the 1963 Act states:

For the purposes of this section, "book" includes every part or division of a book, pamphlet, sheet of letterpress, sheet of music, map, plan, chart or table separately published, but shall not include any second or subsequent edition of a book unless such edition contains additions or alterations either in the letterpress or in the maps, prints, or other engravings belonging thereto.

That is a fine piece of drafting which includes everything. Sometimes that which appears to be ephemera, such as journals, newspapers or a sheet of letterpress can encompass many things important to detailed historical analysis. That is one thing for which great libraries are to be valued. The two subsections taken together cover not only books, in entire or part form, but also newspapers, journals, maps, sheet music, official Government publications, most of which could not be legally described as books. The first section does not explicitly state the libraries in question but it is taken they are included by implication.

Section 187(1) of the Bill names certain institutions:

(a) the Board of the National Library of Ireland;

(b) the authority having control of the library of the University of Dublin;

A more accurate and safer description there would be Trinity College Library of the University of Dublin. Section 187(5) lists other institutions including the Bodleian Library, Oxford and the University Library, Cambridge. The drafters should be aware that this is now officially and legally known as Cambridge University Library. That is a minor amendment but, if it is the legal title, it should be used.

Section 187(6) states:

In the case of a work made available to the public in a series of numbers or parts, the written and signed demand referred to in subsection (5) may include all numbers or parts of the work which may be subsequently made available to the public.

However, it does not include newspapers, journals, etc., nor can it be assumed they are implied with such force that this implication is legally valid. This should be spelled out in the way it was in the 1963 Act and I will table an amendment along those lines.

Section 187(10) states:

For the purposes of this section "book" includes every part or division of a book, but shall not include any second or subsequent edition of a book unless such edition contains additions or alterations.

This is too restrictive. It weakens the existing situation for copyright libraries. Why should we do that and disadvantage our libraries? If we are prepared to do this, I fear we may end up in a situation where British libraries and publishers will starve us wherever possible. They will read this looking for loopholes. Why should they bother supplying copies to our libraries if there is a way of avoiding having to do so? They are not going to bother. Everything needs to be spelled out and I will seek the reintroduction of a form of words which spells out clearly and includes every division of a book, pamphlet, sheet of letterpress, sheet of music, map, plan, chart, tables, separately published and so on. Those are reasonable requirements and we do not wish to put ourselves at a disadvantage in this country, especially taking into account the fact that, naturally, publishers will not bother. If they do are not required to do so they will not send some of this material, which is important and significant.

I thank the Leas-Chathaoirleach, who presided when I started my contribution, and the Minster of State for their flexibility. The debate was on the point of collapse and only that I managed to get here with my tongue hanging out and inadequately briefed it may have collapsed.

It is thanks to the Senator's marathon running over the years.

I never did as well as the Minster of State; I never broke the five hour barrier. I thank the House for indulging me and for allowing me to share my time with Senator Quinn.

I thank Senator Norris for sharing his time with me. I welcome the Bill. A vast and complicated Bill such as this is an excellent example of the kind of legislation that it makes good sense to initiate in the Seanad. I hope the House will allow considerable time on Committee Stage to address its provisions.

I congratulate those involved in the preparation and production of the Bill. Among the questions set out in the general briefing notes produced by the Department is one which states:

Does the Bill contain special provision to deal with features of the Information Age, such as the Internet and digital copying?

The answer states:

The entire Bill is designed in so far as possible to be technology-neutral, so that it can accommodate the demands of the Information Age in the copyright field in a flexible and adaptable way.

An article in yesterday'sFinancial Times under the headline, “Music industry plots to sink Internet pirates”, referred to a conference organised yesterday by the Secure Digital Music Initiative, SDMI, and stated: “The recent escalation of Internet piracy is one of the biggest problems facing the $38 billion international music industry”.

The figures are so mind boggling I do not believe we can easily grasp them. The article went on to state: "However, the enthusiasm with which consumers now download unauthorised songs from pirate web sites has also illustrated the commercial potential of digital music distribution, if it can be organised in a secure manner." I have not read the report of the conference, but it is the right time to debate this issue.

This Bill is an essential preparation for the information age, which has hit us much more quickly than we anticipated. It is a measure that should have been in place a long time ago. However, given the size of the Bill and the issues it deals with I understand why it has taken time to develop it.

If this country was genuine in attempting to establish a leadership position in the information age this legislation should have been enacted a long time ago. However, far from seeking to grasp this opportunity we have, as in several other respects, reacted late. Indeed, we have almost reacted grudgingly.

It is no secret that the Bill has been introduced in response to pressure, mainly from the US. The US has for years asked Ireland to clean up its act on copyright and has threatened us with dire reprisals through the World Trade Organisation if we do not comply. I understand why we have drafted the legislation and why it has taken so much time, but it was necessary to proceed if only to keep ourselves clean. If it were not for the pressure from the US I wonder how long we would have had to wait for the Bill.

If we are serious about the knowledge society and the information age we should not need any pressurising. Approximately 18 months ago I spoke in the House about the determination of Singapore to become the e-commerce centre of Asia, if not the world. I pointed out there was an opportunity to do the same here. An indication of how fast moving these developments are is that I should have expressed such views about five years ago.

We should be taking the initiative in bringing our laws and our infrastructure into line with the leadership position I urged us to take 18 months ago and that we should aspire to. I am delighted this is now, and has been for some time, official Government policy.

The circumstances in which this Bill has been introduced, perhaps late and only because of pressure from another country, creates a doubt in my mind about how serious we are in striving for a leadership role in the information age. When the main stuff of trading is not goods but services based on knowledge and information, the proper protection of intellectual property rights becomes paramount. The article in yesterday'sFinancial Times to which I referred, shows the dangers and threats to those who own intellectual rights but have not been able to copy them in the past.

One cannot trade properly if there are any doubts about the ownership of what one trades in. More to the point, we cannot offer ourselves to the world as the future hub of electronic commerce, as Singapore offered to do some time ago, if we lack a regime of intellectual property rights that is impeccable, clear and beyond doubt.

As long as there has been trade there have been pirates. Even the headline to the article in yesterday'sFinancial Times referred to Internet pirates. With knowledge and information and with a commodity that becomes more valuable by the day, we have had more pirates than ever existed in the swashbuckling days of sailing boats and Jolly Rogers. Of specific relevance to Ireland are the pirates who counterfeit recordings of music, videos and computer software. This has become much easier over the past five years with the growth of the Internet.

If we are serious about leading the world in electronic commerce – I believe we should be and I also believe the Minister and the Government are serious – we must be on the side of the angels when dealing with intellectual property rights. I hope that is the position. Unfortunately it has not been the case in the past. Ireland is the biggest producer of commercial computer software in Europe. Scandalously, we are also the biggest producer and biggest source of pirated software. We must face the fact that these two things are incompatible. We cannot claim to be the biggest commercial producer of software while allowing piracy to take place at the same time.

When it comes to pirated music and videos Ireland is not as bad as many other places in the world, especially in eastern Europe and Asia. However, our bib is not clean in this regard. It should be spotless if we are to become the hub of electronic commerce in the world. We have the opportunity to do so and I know the Government has recognised that need. However, I am unsure if it has been able to convince all of its colleagues and supporters to recognise that this must be the case.

The Bill will allow us to take a giant step forward by putting our own house in order and I welcome it for that reason. However, its late arrival, and the reason for its arrival at all, should alert us to the major danger facing us of merely paying lip service to the promise of the information age. We run the risk of missing out on the enormous opportunities it can bring to this country and the considerable wealth it can create.

Debate adjourned.
Sitting suspended at 1 p.m. and resumed at 2 p.m.

May I share my time with Senator Henry?

Is that agreed? Agreed.

The Bill will allow us to take a giant step forward in putting our house in order and I welcome it wholeheartedly for that reason. Its late arrival and the reason it is necessary should alert us to a major danger which faces us now, the danger of merely paying lip-service to the promise of the information age. By doing so, we risk missing out on the enormous opportunities and considerable wealth which it can create for this country.

If the problems I allude to in relation to this Bill were isolated incidents, it would be worrying enough. Unfortunately, there is growing evidence that, far from being isolated, our laggardly performance on copyright is symptomatic of a condition which is quite widely rooted. That is my main concern. We must make sure that we alert ourselves not only to the threats but also to the opportunities. I am convinced the Minister of State is aware of this and that he is behind it, but we must shake ourselves up if we are to achieve it.

The results of the latest OECD survey on the preparedness of its member countries for the information age were made available yesterday. I remind the House that it is Government policy that Ireland positions itself among the top quarter of OECD countries for all of the important performance parameters. Effectively that means that on any measure of information age readiness Ireland will be among the top six OECD countries. That is where I thought Ireland was heading. Indeed, nothing less than that is necessary if we are to aspire to a leadership position with any credibility.

Is Ireland in the top six? Alas, no. The reality is that Ireland is in the bottom six. Just as with copyright, which is an element of the information age mix, we are the laggards not the leaders. We should be in the vanguard with our copyright legislation. If we were in front, one can imagine the opportunities for us in the years ahead. Instead we are at the back and only there at all because we are whipped into place by foreign threats.

One must add to this the fact revealed yesterday that the number of telephone lines in Ireland per 100 inhabitants is the lowest in the EU. I could not believe it. I thought we were doing reasonably well because I see so many people going around with mobile telephones. In addition, residential telephone costs are the third highest in the EU and the cost of registering an Internet domain is by far the highest in the EU. We aspire to be leaders in the information age yet we have only 12 Internet hosts per 1,000 population. Finland, a small peripheral country with a population not unlike that of Ireland, has 99. Finland is eight times further advanced in that regard than we are.

It is the same story when it comes to the number of personal computers in homes and schools – two key measures of Internet readiness – yet we are making progress. The selection of Ennis as the technology town is a good example of this, but Ennis is now doing what should be happening in every town in Ireland if we are to keep up with what is happening elsewhere in the world.

As we consider this important copyright legislation, I ask Members and urge the Government to give a thought to the widening gap which seems to be emerging between the hype we are creating about Ireland's role in the information age and our state of preparedness. We stand on the brink of a great opportunity but if we are going to grasp it, we must work at it and not just talk about it or do too little, too late and too reluctantly. We will succeed not on the basis of what we say but on the basis of what we do. If I appear to be critical, it is solely because I am sorry that it has taken so long. I cannot blame the Minister of State for that but I blame us, as a nation, for thinking that this was an easier task than it has proved to be.

I want to address a couple of aspects of the Bill which concern me. For many years when those in my business wanted to release information we talked about press conferences and press releases. We changed that. We had to be hard on ourselves and consider the word "press" a swear word so that we would not use it but use the word "news" instead. We realised that there has been a convergence of the different media and we now use the words "news conference" and "news release". The reason is that there is no difference between the different media. Whether it is radio, television, the Internet, electronic or old fashioned newspaper, each medium is treated alike.

I note that section 23(2) singles out the printed press to be treated differently from other media. I am not sure why this is the case. It may be a slip up which is a hangover from the last generation when television and radio were secondary media and electronic media did not exist. I draw the Minister's attention to section 23(2) and ask why journalists who work for the press have been singled out as being in a different position in regard to copyright. I am sure the Minister will be able to explain that.

At a time when competition in the press is coming from outside the State and because, to the best of my knowledge, these sort of copyright regulations do not apply outside the State, such restrictions would seem to handicap Irish newspapers if they do not apply to their competitors. In other businesses, Irish laws which we are unable to enforce on businesses which operate in the State but are based outside the State seem to be unfair on competing companies. If that applies in the case of newspapers, it is an anomaly which we must remove. I would ask the Minister to look seriously at section 23(2). It is a matter which may be dealt with on Committee Stage rather than on Second Stage.

I welcome the opportunity the Bill presents. I welcome the fact that it gives us the opportunity to become the hub of world electronic commerce. The Minister has done a good job bringing it before us. I congratulate his staff on producing such a detailed Bill. I know the Minister will be happy to learn from the various views put. I hope he will be willing to accept amendments which improve the Bill on Committee Stage.

I welcome the Bill. The gestation period has been long but, as Senator Quinn said, that is not the Minister of State's fault. He will be aware that concerns have been expressed about how the Bill will affect the library of Trinity College Dublin. All politics being local, it would be wiser if I expressed them now but I will table amendments on Committee Stage.

There are considerable worries about the changes being made in this Bill with regard to some of the wording in the 1963 Act. I find it difficult to understand why the new wording should supersede the seemingly satisfactory wording of the 1963 Act.

There is a particular problem with regard to sections of the Bill which define books. The definition of a book in the 1963 Act includes every part or division of a book, pamphlet, sheet of letter press, sheet of music, map, plan, chart or table separately published, but does not include any second or subsequent edition of a book unless such edition contains additions or alterations either in the letter press or in the map, prints or other engravings belonging thereto. Arising from the changes made in this Bill, the librarians in Trinity College feel a risk may be posed with regard to the deposit of newspapers, journals, maps etc. in the college library. It is quite possible that most Government and official publications could also be excluded.

Trinity College is at risk on two counts in regard to this legislation. Legislation has also been prepared in the UK and there is a concern that if libraries in the UK are affected by our legislation, their legislation might not look favourably on us. We have benefited from the inclusion of all categories of UK publications and, in spite of representations from some quarters, our right to receive all print formats has been confirmed in the new UK legislation which, unfortunately, still awaits enactment.

The Trinity College librarians have pointed out that UK publishers could see this Bill as a golden opportunity to rescind Trinity College's privileges either partially or entirely. They may well use this opportunity to strip Trinity College of its right to deposit journals, maps or other periodicals. In other words, there is a risk that reciprocity within the legislation might not continue. Trinity College would be much poorer for that. Its collection of UK publications is availed of by the Oireachtas Library as well as many other libraries throughout the country and by semi-State bodies, industries and individuals. The number of books transferred between the Oireachtas and Trinity College libraries is astonishing. Many years ago, it was suggested that the two libraries should be merged.

This is a very serious matter for Trinity College. There are other areas in which queries arise. For example, what does "made lawfully available" mean – why is the word "published" no longer used? I will ask the Minister of State to look at other sections of the Bill on Committee Stage.

I welcome the Minister of State to the House and thank him for initiating this landmark legislation in the Seanad. The significance of this long awaited legislation has already been well aired in the earlier contributions. The Minister, in his opening remarks, indicated that there had been a wilful neglect – although he did not use those exact words – on the parts of successive Governments in regard to this matter.

The 1963 Copyright Act, which has served as the basis for all copyright law in this country, was superseded by a great deal of later legislation in other jurisdictions but was only attacked on a piecemeal basis here. I recall a controversy some years ago which surrounded the lack of proper legislation in this area. I understand that only one individual in the relevant Government Department had any knowledge or expertise in copyright law and effectively served as the copyright office. Unfortunately, civil servants cannot speak in this House. The civil servant accompanying the Minister today is keeping his counsel.

The entire burden of copyright legislation, its loopholes and associated litigation and arbitration was channeled through one individual. As Ireland's role in European affairs accelerated, his services were increasingly called upon. He probably deserves an equivalent to the Congressional Medal of Honour for his work. That explanation might go some way to addressing some of Senator Quinn's earlier comments about Ireland being at the lower end of the league in regard to copyright law.

In view of rapid advances in technology and the growing awareness among authors in a variety of fields of their rights, it was inevitable that we would no longer be able to sustain archaic legislation such as the 1963 Act. It may surprise Members to learn that the Irish music recording industry can really only trace its beginnings to the early 1960s. The Minister of State, being an aficionado of the showband era, will recall Tom Dunphy of the Royal Showband. Historians would probably agree that he was the first Irish-based artist to record in and be marketed from Ireland with his famous little ditty "Come Down the Mountain Katie Daly". He recorded on EMI records. Tenors such as Count John McCormack would have been contracted to UK based companies and marketed out of the UK. With the exception of Bridie Gallagher and a few others in the 1950s, Tom Dunphy was the first artist to be marketed by the Irish office of EMI.

One of the trailblazers in the Irish recording industry was the late John Woods, brother of the Minister for the Marine and Natural Resources, Deputy Michael Woods. John Woods was the chief executive of Pye Records which was an offshoot of one of the major multinational companies, Decca Records. During the showband era, he encouraged significant numbers of Irish recording artists to record in Ireland. From that, a fledgling native Irish music recording industry emerged.

Such was the naiveté or ignorance of some artists that the issue of copyright remained an alien concept to them. Many Irish songwriters who composed songs which subsequently sold hundreds of thousands of copies knew very little about copyright. Executives of the Irish Music Rights Organisation point out that the organisation's history is littered with examples of artists, including established ones, who did not protect their rights. While Senator Quinn is correct about the lack of a proper legislative vehicle for this complex subject matter, there was also a lack of information, bordering on complete ignorance, on the rights of authors, especially in the music field. That is the area I know best. I am not sure whether the same is true in the literary context, perhaps not.

Much of the activity in Irish literary effort – and I use the word literary in the broadest possible sense – has been relatively recent. It is only in the past three decades that we have had an explosion of creativity in the arts, books, music and film. Perhaps it has been a failure of successive Governments or others responsible that more information was not given to those involved in creative arts about their rights.

This morning the Cathaoirleach gave a timely clarification of the position in relation to statements of interest. Anybody who wishes to look at my statement of interest as a Member of the House will note I am a music publisher. Consequently, I have more than a passing interest in the contents of the Bill, both as a legislator and someone who, while not benefiting directly from it, represents songwriters who will benefit very much from the protection this Bill allows them. At long last it is no longer necessary to go the courts for clarification – it is all in the Bill.

The House should keep in mind that this legislation is for its time, for now. We cannot anticipate the changes in technology which will occur over the next ten or 15 years or whether they will be parallel to the unprecedented development in technology over the past five years, in the context of Internet accessibility and mobile phones to which Senator Quinn referred. I reflected today that it is not that long ago that I had to cart around very heavy equipment in my car as I canvassed on Seanad campaigns to be able to pick up a signal in rural areas. Now my mobile phone is only the size of a credit card.

This legislation must be viewed in that context. It is an honest attempt to draw together all the aspects of the creative arts and how they are expressed, whether in the traditional format of books, records and films or in the modern outlets of Internet development and technology.

Of course, even with the very best efforts, there are flaws in the legislation. Senators Henry and Norris have already referred to one in section 187 and I intend to amplify that slightly. However, generally speaking – to paraphrase one of the Minister of State's officials, who I believe is right – this legislation will stand with the very best. To use Senator Quinn's term – I hope he does not mind me appropriating it and I hope it is not copyrighted – it is a best practice model in the context of copyright legislation. While Senator Quinn may be right in referring to us as being in the bottom six in various areas, once this legislation is passed it will be a model of its kind and a benchmark for other countries who are perhaps in the bottom six.

There is no doubt that Ireland was being held up as a laughing stock for some years. Ireland was being compared with the worst excesses of copyright fraud perpetrated in south-east Asia. Undoubtedly, the Government was pushed into a position where it had to respond. The Minister of State referred in his contribution to legislation which passed through this House last year, to which we contributed and which was a response to our involvement in TRIPs. It came about as a result of a glaring deficiency in our legislative framework which allowed individuals to claim ownership of computer programmes and the companies concerned could do nothing about it. The Minister of State is familiar with this legislation as he channelled it through both Houses.

Prior to that legislation, companies such as Microsoft, one of the largest purveyors of software programmes, would have had to go to court in this country to prove they were the owners of their programmes. The legislation has put the onus on the alleged fraudulent person who must disprove that ownership. That was important legislation which filled an important gap. At that time the Minister of State indicated that the Bill before us was in draft form and would follow.

From an Irish perspective it is interesting to note that, despite the modernity of Irish society, IMRO has told me there are still writers who have not protected their copyright. I am familiar with one very well known writer who was a member of a successful international rock group in the early 1970s. In his own inimitable way he told me that, having signed the paper of assignment, all he got from his publisher was a leather jacket and a couple of pounds. This was after writing 15 top rock hits at the time. He is somewhat philosophical about it today, 20 years later. However it was a scandalous manipulation and exploitation of a young Irish writer who was and is more interested in playing his own music with his colleagues than in the paperwork surrounding the business of making music. He was unquestionably exploited by publishers who assigned the rights of his work to their company and did not pay him.

There are still examples of writers who have signed over their works to publishing companies which have not paid them. That is not the case with the overwhelming majority of Irish based music publishers but, as in all businesses, there are rotten apples. The reason they have got away with it is the lack of writers' knowledge. This is the one recurring theme in my conversations with young people when I am engaged in my broadcasting and music publishing activities. They want to know how they can protect their rights and creative output.

I hope a message goes from here, and perhaps the Minister of State might avail of the opportunity in his response and throughout the debate in both Houses, to encourage educational institutions which provide courses in contemporary music and the music business to be more active in informing those who wish to make a career in music about their rights. I know it is happening but it is not that widespread. The fact that youngsters are still being exploited means there is need to do something positive about this. It might be useful in an educational framework. The Minister of State, with the power and influence of his office, could highlight this aspect of copyright law in the context of this Bill.

We are all familiar with examples of copyright cases, but is interesting to look at the more obscure copyright battles which have taken place in recent years. George Harrison, one of the famous Beatles, found himself in court in the mid-1970s having written a song called "My Sweet Lord". He was sued for allegedly infringing the copyright on a song entitled "He's So Fine" which was performed by The Chiffons, a pop group of the 1960s, and written by Ronald Mack. The copyright was assigned to a music publishing company. The song "He's So Fine" was an international hit in 1963, together with "The Wanderer" and "Louie, Louie". Harrison's song "My Sweet Lord" was released in an album seven years after the Chiffons' song. It was subsequently re-released on a compilation album of the best of his work. He claimed that he did not knowingly appropriate the melody of the Chiffons' song. This is interesting in the context of the debate. However, the case went to court and the court concluded that George Harrison had, indeed, infringed upon the copyright of "He's So Fine". The decision was unique in that the court acknowledged that Harrison may have unconsciously copied the tune. The court's conclusions were, "His subconscious knew it already had worked in a song his conscience did not remember. . . . That is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished". In making its determination, the court looked at the structure of the two songs in question. In the course of its opinion, the court seems to imply that the infringement was the arranger's fault, rather than the writer's fault. Apparently, George Harrison and Billy Preston, the arranger and a well known musician in his own right, were jamming in a session in Copenhagen when they started to play this piece of music. However, when they were recording the song in London, Billy Preston was the principal musician while George Harrison was engineering the sessions. In the process of polishing the riffs – in other words, fine-tuning – it seems the structures of the song "He's So Fine" came to be added to an original piece of music Harrison had written. Unfortunately, I do not have audio examples, but I have listened to both songs. The songs are well known and there is absolutely no doubt that they are very similar.

I have gone into this matter in detail, primarily because copyright protection is precisely about this point. It is about the creator of an original work, in whatever art form, and whether that original work is theirs once it is publicly available for the first time. This proves how one can get involved in heavy litigation as a result of what, in this instance, was not an obviously straightforward court case; it was about the subconscious. When one is dealing with the creative arts and creative juices, even copyright can extend to what one is thinking, rather than what one is writing. The Minister's statement is as follows:

Exceptions may be of a substantive, policy nature or may be technical – dealing with such matters as incidental inclusion of copyright materials in other works, as for example, where a film is being made on Grafton Street and in the background music can be heard being played from a record shop. In such a case, where there is no deliberate act on the part of the film-maker to include that music in his or her film, the music is properly regarded as incidental to the making of that film and its inclusion, therefore, does not give rise to any infringement of copyright in the music, nor to any requirement on the film-maker to pay royalties to the copyright owners in that music for the use of that music in the film.

I have two examples of this, one a personal experience. This is probably sailing a little bit close to the wind in that the Minister of State referred to "incidental inclusion". In the late 1970s, one of the early movies produced by the Irish Film Industry was called "Cal", a story about the troubles in Northern Ireland. I received a call from the copyright clearance section of the film production company – almost all film production companies have someone employed to clear copyright. They indicated to me that there was a piece of music my publishing company had assigned to it which they wished to use in the movie. At the time, I was not sure in what context. When the film was released, the piece of music was of about 30 seconds duration on a car radio. As the principal actor was driving from A to B, he turned on the radio to listen to the news and this piece of music came on. In my opinion, the music was incidental, although one could argue that the film-makers consciously and deliberately decided they wanted to use this piece of music, the title of which was "My Own Old Derry Town", recorded by Big Tom and the Mainliners. This fitted in with the context of the movie which was set in Derry. Is the fact that it was conscious rather than incidental in this context the fine line between copyright and non-copyright?

The issue of the movie "Batman Forever", marketed by Warner Brothers in the United States, related to copyright sculpture. This is again in the context of fair use and incidental use and I would be interested to know what the experts would say about it in the context of the Bill. I understand that the US copyright Act might be somewhat inferior in certain aspects to the legislation before us. This issue arose in the production of "Batman Forever". In a developing case that is the first copyright suit involving public art reproduced for a film set, a sculpture was prominently featured, as a backdrop, approximately eight times in the movie. It is a fundamental of copyright that certain pieces of art, including sculpture, are eligible for copyright protection. Consequently, permission must be obtained from the copyright holder in order to reproduce images of the sculpture. Warner Brothers did not get a licence to publicly display this work and consequently the sculptor filed a multi-million dollar suit against them for copyright infringement. The sculpture in question is titled "Zanja Madre" and was created by a Minneapolis-based sculptor, Andrew Leicester. The sculpture is overseen by the Los Angeles Community Redevelopment Agency; it cost $2.5 million dollars and is publicly displayed in Los Angeles. The sculpture is described as having water flowing from a broken rock into a reservoir surrounded by large columns and a sinister guardian; wing-like gates rise from the figure at night.

Warner Brothers claimed that since the film crew had permission from the building owner in which the sculpture was located to film at the site, they had a right to include in the shots the sculpture which was located on the grounds. However, mere possession of copyrighted material does not confer any of the copyrights upon the possessor. Unless Leicester had transferred the copyright to the building owner, to reproduce the work the producers of "Batman Forever" would be obligated to seek a licence from the original copyright holder. The case involved several copyright infringements; they lost the case.

Another example is well known and has resonances in this country. It relates to the wonderful, comfortable TV figure called Barney the Dinosaur. The company that owns the franchise is called Lyons Partnership. They licence Barney products internationally. They are currently undertaking a campaign to sue over 700 costume shops and other retailers in 20 American states for copyright infringement. This is within America, not internationally. The Lyons Partnership claims that purple dinosaur costumes could tarnish Barney's image, and that dressing like Barney constitutes copyright infringement. Especially egregious, the company cites an instance of a photograph of a person in a bogus Barney costume, with the head off, smoking a cigar. One can picture the scene – a guy is sitting in a Barney costume. It gets too hot so he takes off the head and is photographed in the rest of the costume while he is smoking. The Lyons Partnership says the unbridled use of such a photograph could tarnish its image.

Costume shop owners claim that purple dinosaur outfits do not have anything to do with the popular children's character. I have no idea whether these cases have yet gone to court or, if they have, whether there has been an outcome.

It is a good example.

Those are examples of what I wanted to highlight in the context of the Bill to emphasise the importance of copyright.

Senator Henry went into some detail in relation to section 187. I am concerned about subsection (2) which states:

The delivery of copies under subsection (1) shall only be made where the delivery does not prejudice the interests of the person who makes the book available under subsection (1) . . .

My interpretation of this subsection is that prejudicing of interests could actually mean that they are giving away their journals and books at a cost and, therefore, that is a prejudice to the interests of the owners. They could rightfully argue that there is no legal obligation on them to provide the journals. I am aware that the Minister has received some submissions on this matter already, but I would strongly urge him to revisit section 187, including subsection (11) which states:

For the avoidance of doubt this section shall not apply to books first made available to the public in another state.

The Minister of State can understand the implications of that subsection for libraries where there is currently an obligation on them. I strongly urge the Minister of State to revisit the section in its entirety because it would be a disaster financially if named libraries eventually had to pay for everything they are receiving. Because of financial constraints an important body of work would not be available to these libraries.

Part VI relates to the jurisdiction of the controller of patents, designs and trade marks as a tribunal for the resolution of certain disputes regarding copyright licensing schemes. Apart from this reference, there is no possibility in the Bill of introducing an arbitration panel, similar to that in US copyright law, where litigation would be threatened or where clarification would be needed in relation to the various parts of the Bill. It would be an effective way of dealing with such matters in a non judicial manner, thus avoiding much cost. It would be helpful to those I referred to earlier, who may seek protection for their works on an individual basis but would not have the financial resources to go through the courts against a major multinational, to have some form of arbitration – not necessarily a standing body, because I understand the cost factor – that would be called upon at one's request whenever a body of evidence was required to be examined in order to make a decision in a non-judicial fashion. That would be legally binding. I can tease this out more on Committee Stage but I want to signal the fact that it already exists in US copyright law. It seems it could be used here. My colleague, Senator Ó Murchú, has a different approach to this matter, but in much the same context. We are approaching it from different angles.

I hope the Bill will have a speedy but detailed passage through the House. It will most definitely send out the strongest possible signal to anybody who wishes to infringe copyright that Ireland is no longer in the business of tolerating piracy, fraud or counterfeit literary works. We are on the side of those whose creative output we cherish and protect.

Mr. Ryan

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 isEncyclopaedia 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.

Tá sé soiléir go bhfuil saothar ollmhór agus fiúntach déanta ag an Aire Stáit agus go bhfuil Bille cóipcheart ilghabhálach ar ábhar an-chasta ós ár gcomhair. Tuigim gurb é an dúshlán a bhí ag an Aire Stáit ná cothromaíocht a chothú idir maitheas an náisiúin agus na dualgaisí idirnáisiúnta a bhí orainn. Tá gach seans ann más rud é nach raibh na dualgaisí sin orainn go mbéadh dearcadh agus modh oibre eile ag an Aire Stáit. Ní ionann maitheas an náisiúin agus na dualgaisí idirnáisiúnta.

The Minister of State has produced exceptionally comprehensive legislation on what we know from this and previous debates is a highly complex subject. I know the challenge which faced the Minister of State was to find a compromise between and to reconcile the national interest and our international obligations. The Minister of State is aware that the two are not necessarily the same, but that we must live in the real world and respond to those obligations.

I always thought the Irish were credited as being highly creative. One would like to think in many cases that we are more creative than any other nation. That is our perception of ourselves sometimes and it would not be an exaggeration to say that many others have that perception, judging from the number of tourists to the country who admire our creativity. That is not just my opinion. One need only look at the many surveys conducted on the tastes of tourists to find that underlined. On the international scene, we feel proud at times that what is physically a relatively small country can achieve the spotlight on the international stage in literature, music and other areas. It is true to say we are a creative people.

The roots of that creativity are not necessarily in commercialism. There is a constant conflict between culture and commerce. It is not of our making but we must live in the real world and must also live up to the requirements and demands of others. However, the orientation towards the commercial rather than the cultural side stultifies that culture. Many people think the best type of art or culture produced is that which is of a spontaneous nature or done for the mere enjoyment of doing it, and not necessarily done to eke out an existence.

A conference on this issue organised by UNESCO which I attended produced some interesting ideas from a number of the countries involved. At least two or three put forward the idea that copyright of artistic material, such as poetry or music, should not belong to human beings but to the spirits. These people believed that it is the spirits which inspire the people in the first place to create works of art. It is a very uneven battle. The chances of the spirits winning out against big business would be slight.

A second idea was that there is a continuing aspect to creativity and that, when a person composes a piece of music or a poem, they are often building on a tradition already established by people who went before. Therefore, one cannot necessarily say copyright starts from the moment a piece of music is composed. The debate on this will continue for some time, even after the Bill has been passed. It will never be an easy task to harmonise commercial interest with the artistic creativity to which I refer.

I raised in the previous debate the notion of native culture with specific emphasis on traditional music, but I broaden that to the area of folklore. Having listened to many musicians down the years, my understanding at all times was that they created music for the people out of a sense of gratitude for music they had freely inherited from their ancestors. That has not changed and I doubt it ever will. If people were to ask what is one of the greatest attractions in Ireland at present, it would not be the big concert halls, the big spectacles or any of the major exhibitions, rather the friendly community-based fun and enjoyment which goes with Irish traditional arts.

There has been conflict in this area between collecting agencies and some of the venues. I should declare my interest in the context of Comhaltas Ceoltóirí Éireann. In that regard and as a result of the debate held here previously, I had the opportunity of meeting with representatives of IMRO and explaining to them that it would be difficult in the first instance to change the tradition of generosity which existed regarding native music and more difficult to implement any legislation which might be enacted. Out of those discussions came a written agreement from IMRO that Irish traditional music in its original form would continue to be freely available to Irish people. That is specifically what we were seeking. At no time were we trying to deprive Irish musicians who wished to benefit financially from their compositions or recordings because that would be unfair in the context of art forms other than the traditional ones benefiting.

However, there is a peripheral item here which is relevant. No matter what legislation is in place or what agreement is reached with IMRO, it is important that the environment which made that spontaneity and community involvement in creativity possible should continue. Some elements of it, for example, archives, libraries and education, are mentioned in the Bill. It is specified that the exceptions will be of a limited nature, but that is a matter for future discussion.

By its nature an archive provides a continuity for tradition. Tradition does not start today, it will not end tomorrow and it did not end yesterday. Tradition must be continuing and the only way we can feed that continuity is by allowing an archive flexibility with regard to the use of material at its disposal. Based on the agreement reached with IMRO, I assume it is still up to archive owners who collect traditional music in its original form to decide the extent to which they use such material.

Material that may be seen as copyrighted must have some place in the exceptions or flexibility suggested as should libraries. If the constraints are so strong and definite they will not only stultify the creativity which existed but will stultify the community interest and involvement. Senators are aware that most of our artistic endeavours take place in such an atmosphere. Indeed, much commercial success, of talent or otherwise, is owed to the gestation period which it had in the community in a voluntary sense. We would do immense harm to the great reputation which Ireland has if we were to cut off that environment in which our talent was cultivated, the focal points of which are the libraries, schools and local community halls.

There has been a major debate on the use of music for performance in schools. I understand from this legislation that it will not be allowed in the context of a public performance. Where a school puts on a performance using what is deemed to be copyright material it will still have to pay a licence. I ask the collecting agencies to show sensitivity in this regard. If a sledgehammer is used, so to speak, where the schools are concerned it will be an easy opt-out for them to have no extra curricular amenities or facilities of that kind.

There has been a change in this regard in provincial and urban areas. In the past there was so much extra curricular activity that people could obtain a rounded education. There was full character development, confidence was instilled into young people and they were prepared for the world of business. If further constraints are placed on schools and teachers it would be very difficult to blame them for opting out of the voluntary service over and above what the school demands. I appeal to the collecting agencies to show special sensitivity in this regard. I suggest it would be in the best interests of those agencies to invest part of the money they collect from fees back into the system to ensure a continuing flow of talent into the commercial world and their environment.

While it might be controlled or sponsored by a local authority, a library is generally seen as belonging to the people. Its services and materials are available not only to those who may have wealth and may not want to use them but, more especially, to those who are perhaps not in a position to spend money to have them at their disposal. I hope the libraries will also be treated generously.

Lest it may be thought I oppose either the spirit or letter of the Bill, let me make it clear that is not the case. I am aware that having benefited from the international stage Ireland has no choice but to prove itself confident of being in the mainstream of business. However, a further effort must be made to reconcile the national interest with our international obligations. I do not believe the Bill of itself will succeed in doing that.

It would most helpful if a forum, agency or group was appointed to examine the various ambiguities which will flow from legislation of such a comprehensive nature. I speak in the area of folklore, which is of special interest to me. Story telling is one of the most vibrant parts of our folklore and one which is becoming yet more vibrant recently, not only nationally but internationally. By its nature, story telling involves a major degree of improvisation, as we all know having listened to the famous story tellers. There is a grave danger that something like that could fall readily into the copyright domain. The net result will be that story telling will be stultified and there will be little or no effort made by story writers to produce extra material.

A similar possibility faces local customs. Many customs in Ireland may be found in similar forms in other countries. However, our visitors show a great interest in them. It is an area that is so extensive and complex it will not be enough simply to legislate for it. Somebody will have to ask the questions and influence the collecting agencies. The only way to do that is to provide a forum, group or agency who will act on the one hand as a harmoniser and on the other hand as a referee because the only other choice is the court – one could go straight from the difficulty into the courts. I do not believe the courts want that, nor do the copyright owners, collecting agencies or communities. The many people who have enjoyed these traditions over the years would be grateful to the Minister of State if he could find it possible to establish a forum of that kind. Senator Mooney touched on the same issue in a more extensive context. Perhaps that is also necessary.

Debate adjourned.

An Leas-Chathaoirleach

When is it proposed to sit again?

Next Tuesday at 2.30 p.m.