I sincerely thank the House for a thought provoking and well informed debate. I am not being patronising in saying that, I have said it on other legislation. The Bill has been well launched on its parliamentary journey and I appreciate greatly the contributions of Senators to the development of public debate on the little known but nonetheless important subject of copyright reform. Senator Cassidy's point in that regard was well made.
I also enjoyed the debate because my interest in music is well known among my parliamentary colleagues. There is a genuine interest in cultural and folklore matters in both Houses. Music is dear to my heart because it is part of our character. We should be proud of the many creative artists produced by this great country. Senators rightly identified a number of artists, such as U2, and the show Riverdance who have put us on the map. In my position as Minister of State with responsibility for trade I am aware of the trademark or image or Ireland which these artists have presented abroad. It is a positive image which emphasises our ability to get along with others.
As far as I am concerned, Ireland has no enemies and is seen in international terms as a country which has a strong role to play in respect of peacekeeping and mediation. Those who visit our shores welcome the fact that they can relax and enjoy themselves. The country's tourism image is one of contentment and enjoyment and music, folklore and cultural heritage are central to that image. I thank the Senators who made this point in respect of copyright.
I will attempt to respond to as many as possible of the points raised. I take this opportunity to place on record my views and those of the Government on the issues to which Members referred. It must be remembered that a great deal of work remains to be done in respect of the Bill. I thank the Senators who acknowledged the fact that we consulted widely on the Bill. I have had an enriching experience in trying to accommodate the concerns of many interested and well informed parties, but at the end of the day one is obliged to introduce balanced legislation. There are other issues in respect of which fine tuning is required. We have become aware of that because Senators raised a number of legitimate points to which I intend to respond in my contribution. I do not promise to respond to all the points raised because there may be opportunities to return to them on later Stages of the Bill.
The question of remedies for infringement and penalties for criminal offences, which is of central importance to the reform of Irish copyright law, was raised by a number of Senators. I recall the comments of Senators Coghlan and Cox on this point. In particular, Senator Coghlan suggested that the shift in the evidential burden from plaintiffs to defendants in copyright proceedings, which was enacted by the Intellectual Property (Miscellaneous Provisions) Act, 1998, in respect of civil proceedings and which is now embodied in section 134 of the current Bill in respect of all copyright proceedings whether civil or criminal, may risk injustice to innocent defendants. It has also been suggested in the course of public debate on this issue that a wider range of sentencing options be provided for minor copyright offences, including the option of community service.
I understand the views of Senators and others who have raised these points and I fully accept that this is a very serious matter. However, the principle which has guided the Government in formulating its proposals on copyright remedies and penalties is that of providing for a just system which will nonetheless strongly support rights owners in protecting their rights from forms of attack which are clearly dishonest. Indeed, it would not be too strong to apply the word "theft", at least in its common meaning, to copyright infringements and offences.
In view of this, and of the serious consequences of such theft for the national economy, the Government is fully convinced of the need to provide rights owners with the means to help themselves through the most accessible, effective and efficient regime of remedies for copyright infringement which can possibly be devised. The Government is equally convinced of the need to underpin this regime of remedies with a system of penalties for copyright offences which is highly effective and fully proportionate to the seriousness of the offences concerned which, as I have suggested, must be viewed as most serious commercial crimes.
Consequently, the Government has not hesitated to provide in the Bill a range of remedies which, in its view, are fully up to the challenge of empowering copyright rights owners in their own defence, even in the face of the increasing challenges posed to copyright and related rights protection by the new technologies. Nor has the Government hesitated to underpin this system of civil remedies by reiterating the new regime of criminal penalties first put in place by the Intellectual Property (Miscellaneous Provisions) Act, 1998. This is the approach required, not only by our obligations under international intellectual property law, but by the practical needs of rights owners whose intellectual assets underpin much of the Irish economy in protecting their legitimate interests.
The provisions on presumptions contained in section 134 are important in securing effective schemes of remedy and penalty because, without them, the ordinary laws of evidence would place an impossible burden on many copyright rights holders in proving their case. For example, in the music field, a music rights holder such as an Irish collecting society could be faced with blank denial on the part of a defendant that copyright subsisted even in patently modern songs with clearly identifiable composers and authors, along with further denials of the existence of assignments and licences of the copyright instances concerned which brought the disputed rights into the rights holder's hands. The consequence of such a defence could be to require the collecting society to marshal not only affidavit evidence from home and abroad, but a large number of witnesses, many from overseas, to face cross-examination on their affidavits. This situation, which obtains under the 1963 Act, represents a wholly unreasonable restriction in the access of authors and copyright rights holders in general to justice which is only exacerbated by the complexity and international nature of much of copyright-based industry. The Government is convinced that it is necessary to remove this unfair burden from rights holders and section 134 represents a straightforward and, we believe, effective way of redressing this manifest imbalance in copyright proceedings under the current law.
I note the concerns of the Leader of the House, Senator Cassidy, that the provisions of section 122(3) and (4) might undermine the evidentiary presumption in favour of plaintiffs contained in section 134. I would prefer not to comment in detail on this point, beyond saying that as I currently understand it, the two subsections in question would enact provisions aimed at administrative convenience in the management of certain proceedings in the courts. If this is so, the substantive provisions of section 134 would still operate, even with section 122 in place in its present form. There will always be circumstances in which the courts may require full hearings with full witness cross-examination, namely, where a defendant can adduce evidence of possession of title to a copyright interest claimed by a plaintiff which appears good on its face. Bearing this in mind, it was certainly not the intention in including section 122(3) and (4) to render the most important presumption provided for by section 134 an effective nullity. In view of the concern expressed by Senator Cassidy on this most important point, I shall take further legal advice in the matter. I thank the Senator for bringing it to my attention.
On the general question of remedies and penalties, it should go without saying that the provisions incorporated in the Bill were devised by my Department in close consultation with the Office of the Attorney General, whose advice is that no infringement of the constitutional right of defendants should arise from these measures, whether individually or collectively. As stated earlier, this is merely a method of redressing an imbalance which can cause serious injustice to bona fide rights holders and, as such, constitutes a badly needed reform.
Turning to the question of the relationship between copyright and traditional music, Senators will recall spirited exchanges taking place in the House on this subject in the course of debate on the Intellectual Property (Miscellaneous Provisions) Act, 1998. Once again, Senators Ó Murchú and Mooney had notable contributions to make on that point in the current debate. Clearly, for pure traditional music which is, by definition, without an author, and for which the question of originality cannot arise, there is no reason primary copyright should attach to it at all. Copyright considerations should not affect the right of players to play music which is part of a genuine traditional community resource and over which no primary copyright interest can exist. Nonetheless, problems can arise in connection with arrangements of traditional music which, as arrangements, may be protected by copyright. Furthermore, concerns have been voiced about the implications for the continued free use of traditional music "captured", so to speak, in ever more perfect recording media over which, of course, sound recording copyright, a neighbouring right, may exist in respect of the recording only.
Having considered the matter, I am not convinced that the phenomenon of so-called "digital capture" should pose a practical problem in this area. It remains true that copyright cannot in any circumstances attach to a pure traditional work so as to interfere with the right of traditional players to perform it. There is, of course, an unavoidable area of difficulty with regard to arrangements of traditional music which may, as arrangements, qualify for copyright protection.
With regard to how disputes in this grey area might be avoided, I believe that interested parties, both in respect of traditional music and of music copyright, have a serious responsibility to behave sensibly and reasonably towards each other in asserting their respective rights. In this context, I welcome the recent demarcation agreement between Comhaltas Ceoiltóirí Éireann and the Irish Music Rights Organisation which should go a long way to ensuring that unnecessary and damaging disputes on such issues within the music community are avoided.
Senator Ó Murchú mentioned the tradition in some societies that expressions of folklore such as traditional music should be regarded as the property of the spirits or, perhaps, as the common property of the community from which they arose. This touches on the question of whether intellectual property law should convey a form of protection which would in some way recognise the unique ownership interests of indigenous communities in their folklore and in indigenous assets in general, a recognition that might take the form of financial return to the community in question or special privileges in using the material, or both.
This is a large question which challenges the traditional, individualistic basis of intellectual property law as it has evolved in the developed world. It is clear that in a world of increasingly sophisticated media for the copying, representation, adaptation and transmission of artistic works, data and information of all sorts, intellectual property rights in relation to such materials can only be conveyed in an environment of substantial international agreement as to the scope of the protection to be afforded, its nature and its subject matter, as well as the appropriate beneficiaries of the protection. We are only at the beginning of the process that may lead to such agreement and many questions need to be answered before agreement on this level is possible.
At this stage, I can say that Ireland warmly welcomes the initiatives by international organisations such as UNESCO and the World Intellectual Property Organisation in advancing the debate at this early stage and we will follow future developments with interest. I will be anxious to follow that debate at international level. Senator Ó Murchú made a substantial and important point that needed to be addressed during this debate.
In the course of their contributions Senators Mooney and Ó Murchú advanced the idea that it might be advantageous to establish an arbitration panel or commission which, presumably, would have the objective of allowing copyright-related disputes to be resolved in an expert context and without the formality and expense of court proceedings. Consideration was given to the possibility of establishing an expert level of dispute resolution along the lines of a copyright tribunal in the course of preparation of this Bill. Given the volume of disputes in the relatively small Irish market for copyright protected works and the fact that many serious disputes are likely to require the attention of the courts in any case, I concluded that the establishment of such a body would not be justified in Irish circumstances, either on operational grounds or on grounds of cost.
The copyright and related rights rightsholders and the community of users of copyright-protected materials should be aware that I will continue to take an active personal interest in the ongoing interaction between the exercise of rights of copyright rightsholders and users of copyright materials. Should further measures in the area of dispute resolution prove proportionate and necessary on the basis of future developments, I will consider them.
Senator Cox mentioned the activities of copyright collecting societies, and the widespread perception that some societies exercise their remit to exercise copyright rights on a collective basis on behalf of their members in a heavy-handed manner. I appreciate the Senator's point. I agree it would be unfair to refer to any particular organisation by name in this House, but it appears there are occasions when the zeal employed by some collecting societies in carrying our their functions can exceed the bounds of what is normally regarded as reasonable.
These societies have an important function in the system of copyright protection. Without them, many rights, such as copyright interests in music and performers' rights, could not be effectively exercised, since the only effective way for most rightsholders to exercise such rights is on a collective basis through a collecting society. Nonetheless, it is essential in this as in all other areas of business that parties conduct themselves reasonably and courteously towards each other. This is all the more important in an area such as the exercise of copyright interests, where the obligations involved are often imperfectly understood by users of copyright materials. I appeal to collecting societies to persevere in what is, in general, their reasonable, courteous and businesslike approach to the conduct of their business which must be conducive to the efficient and effective achievement of their objectives.
One aspect of the relations between collecting societies and users of copyright materials which can cause difficulties is the problem often experienced by the latter group in obtaining information on the former. It is for this reason I propose to introduce in the Bill registration schemes for licensing bodies dealing with copyright, performers' property rights and the database rights. These registers, which will be kept by the Controller of Patents, Designs and Trade Marks, will provide users of copyright materials and the public with easy access to basic information on the registered societies, including the names of their officers, the classes of rightsholders they represent and the scales of charges they apply.
Senator Cox noted that registration under these provisions would be optional. I could not accept her suggestion that it be made compulsory, or a precondition for operation as a collecting society in the Sate, as this would amount to a formal precondition to the exercise of copyright rights and such formalities are not permitted under international copyright law. I am advised that collecting societies, which have been in touch with my Department on the matter, have generally accepted the value of the proposed registration system in improving public knowledge of copyright rights in general, public appreciation of the role and value of the societies and the importance of reducing the suspicion many members of the public feel towards these sometimes mysterious bodies through a formal exercise in transparency. I am confident that, while voluntary, the new registers will attract a comprehensive range of collecting societies to register and will be successful in their intended purpose of informing the public.
On the question of libraries, a number of Senators, including Senators Mooney, Norris and Henry, expressed concern as to whether the provisions of section 187 might unreasonably interfere with, or even render ineffective, arrangements for the mandatory deposit of books to certain depository libraries, including the National Library of Ireland and the library of Trinity College. A specific concern in this regard is that the terms of the section might render ineffective reciprocal deposit arrangements with depository libraries in the United Kingdom, which operate greatly to the mutual benefit of the libraries concerned in both countries.
On consideration, I share some of the concerns expressed by the Senators. Section 187, like the rest of the Bill, was drafted with strict copyright principles in mind. As I mentioned in my opening address, these principles involve very strict limits on exceptions interfering with the exercise of copyright interests by rightsholders. This rule was applied to section 187, and explains, for example, the extremely restrictive character of subsection (2) which, read literally, could effectively disable the depository system altogether.
Another consequence of the application of the Bill's general principles to the section is that the modernisaton of terminology effected throughout the copyright part of the Bill is also carried through here. This may also have unfortunate effects. For example, the use of the term "made available" and related terms instead of "publication" may, in the context of the section as a whole, cast doubt on the enforceability of some depository obligations in relation to books published in the State.
On this matter we may not have been entirely right. We accept this. Senator Norris remarked that book deposit has little to do with copyright. It would be more accurate to say it has nothing at all to do with modern copyright law. In times long past, book deposit was a formality required to secure copyright protection, but this link has long since been broken. Book deposit is now justified solely on cultural heritage and, perhaps, educational grounds and the legislation governing it travels with copyright legislation in Ireland and the United Kingdom purely on the basis of a traditional association.
My officials are currently in consultation with the Department of Arts, Heritage, Gaeltacht and the Islands with a view to eliminating these difficulties from the present version of section 187 by way of amendment, either in this House or in the other House in due course. I am grateful to Senators for their clear and eloquent statement of the problem during the debate.
Some Senators expressed concern about the definition of a book contained in section 187 (10). Their concern is that some types of book or components of a book which were comprehended by the more detailed definition in the 1963 Act might be excluded by the new definition. Senator Henry has already submitted an amendment which would reinstate the position under the 1963 Act, and I would like to thank her for her attention to this point.
The advice I received on the matter suggests that Senators need not be so concerned. The advice was that the new definition represented no more than a simplification of the rather cumber some wording of the 1963 Act which, on any reasonable reading, would be taken to have the same scope. However, in view of the worries expressed by Senators regarding the new definition, I will take further advice upon it and will ensure that remedial action is taken by way of amendment, if necessary.
I wish to refer briefly to the point made by Senators Coghlan and Quinn and others in relation to the ownership of works produced by employee journalists in the course of their employment by newspapers. Senators will be aware that under the 1963 Act newspapers owned copyright in such works only to the extent that it applied to its inclusion in a newspaper. The other share, so to speak, of the copyright belonged to the employee journalists to exercise as they thought fit.
In the course of the extensive consultation process leading to the publication of this Bill, to which Senator Cox referred, the Tánaiste and I gave careful consideration to strong representations from the National Newspapers of Ireland on this matter and concluded there was no justification in maintaining this split copyright situation which, as Senator Coghlan pointed out, applies in no other field of employment. However, in assigning the full copyright interest to the newspaper-employer, we considered it just to retain some element of the right to exploit their work outside the newspaper context which, at the very least, can be regarded as a traditional entitlement of employee journalists. This has been done in some other jurisdictions reforming copyright legislation based, as ours is, on the UK Copyright Act, 1956; for example, the Hong Kong Copyright Ordinance, 1997, provides for direct financial compensation for all employees whose work is exploited in secondary ways not contemplated at the time of the making of the work.
The particular provision proposed in this Bill should remove any reasonable doubt as to the right of newspaper proprietors to exploit works created by employees in the course of their employment. In particular, it conveys the full copyright interest to the employer-newspaper, allowing the employed journalist to retain no more than a restricted right to use such works which excludes their inclusion in newspapers. I will certainly consider representations made to me in this matter. In framing this provision, I was aiming to strike a proper balance between the competing rights of the parties concerned, having regard to good principles of law as well as the realities of the position traditionally obtaining. It remains my belief that I have found that balance. As I said at the outset, there were many areas in which there were clearly two conflicting interests.
As to Senator Ryan's suggestion, which I understood to be that the 1963 exception in favour of employee journalists in respect of ownership of copyright should remain unchanged and be extended from print journalists to all journalists, I am afraid I could not accept that suggestion. Having carefully considered this matter, I must conclude there would be no justification in international law or, indeed, in logic for maintaining the current division in the copyright interest in works created by journalists employed by newspapers in the course of their employment and between the journalist and the employer. The invariable rule in international copyright is that the first owner of works created by employees in the course of their employment is the employer. In my view, it is entirely sensible and proper that Irish law be brought into conformity with this rule, with a limited use based exception left in place only in the precise area of print journalism, where the 1963 exception was, uniquely, enjoyed by employee journalists.
Senator Norris mentioned the effects of the implementation of the EU duration directive in Irish law, in particular, in bringing back into copyright works which had previously entered the public domain as a result of the extension of the term of copyright from 50 years after the death of the author to 70 years. I have some sympathy with Senator Norris on this point. The preferred position of the Irish authorities on the duration directive did not favour the extension of the minimum term of copyright protection to 70 years. It is, however, a reality of the EU legislative process that negotiation and give and take are required on a broad front if anything is to be achieved, and it is not possible for any member state to achieve all its objectives in the course of that process. The duration directive is now part of Irish law. The provisions of the statutory instrument referred to by the Senator are, indeed, incorporated in the present Bill. I refer him to Chapter 3 of the Bill in that regard. There is really no alternative to this course, as EU law stands in the matter.
There are, as I mentioned in my remarks opening this debate, exceptions in favour of specified instances of fair dealing with copyright works including, for example, fair dealing for the purposes of criticism or review. However, our obligations under international law require that such exceptions be specific, limited and incapable of interfering significantly with the exercise of copyright by rights holders. These obligations would severely limit the scope to introduce a more flexible concept of "fair use", such as might address the behaviour of rights holders perceived to be unreasonable in their exercise of their copyright rights. I understand the concept of "fair use" is derived from United States copyright law, where the traditions of legislative drafting and interpretation differ from ours. Without wishing to involve myself in detailed matters of statutory interpretation, I do not believe the introduction of such a concept into Irish legislation would produce exceptions of the specific limited nature required by our international obligations.
Reference has been made by Senators to the suggestion that aspects of this Bill may be in breach of the proposed EU directive on copyright in the information society. I assume this refers, in particular, to the scope of exceptions which might be allowed by the directive, if and when it comes into force. Apart from that question, I am of the view that the Bill is in conformity with the objectives which the proposed directive addresses.
The important word here is "proposed", as this directive is still in a draft stage. I understand the views of the European Parliament on the draft are at present being considered by a working group of the Council, on which my Department is represented. From my opening remarks, it can be inferred that the Irish Government is not at present in a position to accept formulations of the draft directive which would seriously undermine exceptions to copyright which form an important part of the essential balance between rights holders' interests and the interests of users of copyright material, as this balance has developed in Ireland. Nor do we favour limitations on the right of member states to adapt their regimes of exceptions to meet new challenges generated by future and unforeseeable developments in the information society. I also understand that Ireland is far from alone among member states in having difficulties on these points.
Senators may depend upon it that, should it prove necessary to introduce further legislation to adapt our copyright law to the requirements of new EU legislation, the Government will do so promptly. However, we cannot and will not attempt to introduce measures tailored to the shifting requirements of a draft text, especially where the particular feature of the text in question is one which we feel requires further serious consideration.
Senator Ryan raised a number of matters in his contribution, far more than I feel able to return to now. I would, however, like to take up one point which he raised – the question of whether copyright was an appropriate form of protection for computer programmes or whether it would be more advantageous to switch the emphasis to patent protection in this area.
The future of patenting as a means of protecting computer software has been the subject of considerable debate in recent times and I intend to follow this debate with interest. However, it is important to recognise that, as the law now stands, copyright is the normal basis upon which intellectual property rights in computer programmes are protected. This fact is underscored by the EU computer programmes directive, and in international law by the World Intellectual Property Organisation Copyright Treaty of December 1996. Both these instruments require that computer programmes be protected under copyright as literary works in accordance with Article 2 of the Berne convention on copyright. We are obliged to give effect to the provisions of these instruments in Irish law.
More generally, I cannot agree with the Senator that copyright is an inappropriate means of protecting intellectual property interests in computer programmes. It may be argued that it is stretching reality somewhat to say that something which essentially consists of units of electronic code can be regarded as a literary work. However, this idea is not totally unreal as computer programmes are normally written and modified through the medium of languages which, while technically specialised, are nonetheless literary, in the sense that they can be written in a form immediately comprehensible to an informed reader. From this, it follows that to protect electronic representations of computer programmes is no more illogical or unreasonable than protecting electronic representations of any other class of copyright work. Protection of this sort is secured by this Bill because, without it, copyright protection in the age of digital storage and communication would be seriously undermined.
More important, perhaps, is the fact that copyright offers substantial advantages as a means of protecting software. Computer programmes are seldom fixed and final things, like many industrially applicable inventions which are protected by patents. They are certainly "fixed", in the sense that they are definitely recorded or written, but they are also capable of rapid evolution and adaptation. Such evolution and adaptation is a normal and necessary part of a vibrant software sector. In these circumstances, affording protection by means of copyright, which protects works once they come into being and which requires no prior formalities such as the registration procedure required of patents, has obvious advantages.
It is impossible to overstate the importance of the software sector to the Irish economy. The advantages of location and operation in Ireland have been well accepted by international business, and thousands of jobs in our economy depend, directly or indirectly, on large and small software firms. In this situation, it is absolutely critical that we put in place a regime of intellectual property protection which is effective in the software field and in this regard, I am pleased to note that representatives of the software industry have generally welcomed the provisions of the present Bill as published.
A number of Senators appeared to suggest that the Government only brought forward this legislation because we were forced to do so by international pressure. I think it was Senator Quinn who wondered how long it would have been before the legislation was forthcoming in the absence of such pressure. I make no apologies for the neglect of copyright law reform in earlier years – it was inexcusable. However, neither this Government nor its immediate predecessor needed any persuading of the urgency of copyright law reform. We would have preferred to make faster progress but this was simply not possible.
My Department established an intellectual property unit in 1993 with the reform of copyright legislation as its major objective. However, there were conflicting imperatives, including the need to reform our trade mark law, which was achieved by the Trade Marks Act, 1996. There was also the heavy workload in the intellectual property area connected with Ireland's presidency of the European Union in 1996, which culminated with the Community's successful participation in the World Intellectual Property Organisation diplomatic conference of December 1996 at which new treaties on copyright and performers' rights and rights in performances were concluded.
Above all there was the complexity of the task, which has absorbed the time of a team of my officials almost exclusively for over two years and much of the time of a corresponding team in the Office of the Attorney General as well. Getting this job done is important and getting it right is equally so. From the reaction of the House to the Bill, I feel confident that all our efforts were worthwhile and that we are well on the way to putting in place the effective, efficient regime of copyright protection required by the economy and society at the dawn of the new millennium.
I thank the House for a most stimulating and useful debate on this matter, and look forward to hearing its further views on the details of the Bill on Committee Stage.