Copyright and Related Rights Bill, 1999: Second Stage (Resumed).

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

Cuirim fáilte roimh an Aire Stáit.

On the previous day I made a number of points, particularly about people working in the cultural sphere. I also said that the legislation had committed itself to quite a lot of consultation and I thank the Minister of State for his accessibility to so many people and groups. This is very complex legislation. It does not deal with peripheral issues. This Bill relates to the modern economy as it is developing in Ireland and also to Ireland's interests abroad. Therefore, everyone would agree that this is vital legislation.

It is also vital because it responds to our inter national obligations. At present, Ireland is ranked highly in the worlds of industry, entertainment and literature. It is important that we are seen to be living up to whatever obligations are required while at the same time endeavouring to protect the rights of our creative artists.

I touched on the issue of schools when the debate adjourned last week. We have had a lot of debate on schools, particularly in relation to specific incidents. That is not always the best way to have a debate. Perhaps it is better to initiate it in a broader sense. During those debates a number of points were made, particularly about the need for young people to show an interest in creative arts. We benefited from that when we were younger, when teachers became involved in extra curricular activities such as drama or musicals.

When collecting agencies seek to get fees for particular works, alarm bells start to ring. It is difficult to cover the costs of this work in schools and it is easy for teachers to opt out of extra curricular activities and to work the standard hours. However, young people, communities and the world of art and entertainment are poorer for that because schools provide the incentive for young people to pursue their studies and develop their talents.

There is no opt out clause for these schools in the legislation. If the presentations are open to the public and not just to students, the collecting agencies would have the authority to seek fees. We need harmonisation between the collecting agencies and the legislation. Collecting agencies must work in partnership with the schools. They will not make a better investment because it will ensure their client base for the future. I appeal to the collecting agencies to show sensitivity in this regard.

This legislation is comprehensive and revolutionary and it will have a global impact. We need a forum to analyse the various queries, debates and difficulties about the lack of interpretation and about folklore which might not have been regarded in the context of copyright legislation. Unless a forum is set up, the only body available to consider and adjudicate on these matters will be the courts. That will not help our artistic atmosphere or environment, our creativity or the image of collecting agencies. For that reason, I ask the Minister of State to ensure that his Department or the Department of Arts, Heritage, Gaeltacht and the Islands considers setting up a forum to deal with issues as they arise.

The Internet is new to many of us and while we may have ambitions to use and understand it, we will not catch up with the ten and 12 year olds whose world it is. Developments are taking place at an exceptionally fast rate in this area. There are new developments every month or six months. However, there are great difficulties controlling or policing the Internet. We have already heard about difficulties policing pornography on the Internet. I understand that copyright owners must point out to the service providers that some thing is being used which breaches copyright. How do we police that? We need to strengthen co-operation between countries so that all our rights are protected. I ask the Minister to clarify how we expect that to happen.

Some may say that libraries are largely irrelevant today, particularly because of the advances in technology. However, libraries, which are a public service, are still used extensively by people for a small fee, regardless of whether they can purchase books. The same applies to research in libraries. I am concerned that this area is restrictive. I compliment the Minister of State for considering libraries and archives which are fundamental to creativity. Many young people who had access to a library were inspired or motivated to develop their talents as a result.

I understand there will be exemptions for archives which have a special designation. Perhaps this has not been teased out fully, but I ask the Minister of State to clarify to what extent this will work. Do people apply for designation? Must they be public archives or will private archives qualify? Many archives have been built up on the basis that they are available to the public without charge. If royalties or fees are charged, it will stultify the potential of those archives. I ask the Minister of State to consider the numerous private archives which have been put together lovingly when he decides on designations.

Many people who travelled to fleadhanna ceoil, feiseanna or Slógadh often recorded the event and the quality was good even in the days when reels were used. They eventually presented that material to an archive. Its value is often underestimated and there is little written about it. The people who collected it had a vision and they knew for what purpose they were doing it. Many of these people have passed on to their eternal reward, so it would not be fair to their memory if we did not ensure the information was made available to the next generation. I am anxious to know the Minister of State's intentions in this regard.

Yesterday Professor Séamus Ó Catháin from the department of folklore in University College Dublin made an excellent presentation to the Joint Committee on Heritage and the Irish Language. He gave us a listing of the material which is in his archive in the university. Every member of the committee was overwhelmed at the corpus of material which had been assembled and which was not known to the general public. He said all folklore and heritage must find a harmonisation within the education system. The point he was making was that it is one thing to have a text or a set goal to gain whatever number of points are necessary for one's career vision or career prospects, but on the other hand one should have a fully rounded education. That heritage which is our own environment – from whence we came, what we are and the vision of what we have for the future – and that folklore should find an echo within education. This touches on the area of archive. If for any reason a decision was made to put constraints where there had been no constraints previously that would not be a wise decision.

I pay tribute to IMRO to which I referred on the last sitting day. Arising out of the first debate here some time ago on copyright law, IMRO responded very quickly to points raised in regard to traditional music and the traditional arts. It was prepared to accept the points made which are now incorporated into an agreement stating largely that traditional music will be freely available in its original form as it was heretofore and many other aspects of events relating to traditional music. The reason I mention IMRO in this case is that, being one of the collecting agencies, I can see it responding generously to the points I have made. I do not know whether it is within the Minister's remit to raise that with IMRO, as I hope it is. It is in our interests to work in partnership on this matter because, as the Minister said in his contribution, it relates to the modern economy. I hope that discussions with IMRO and any other agencies will continue.

I compliment the Minister on this comprehensive legislation. I understand the constraints on his time but the manner in which he and his officials made themselves available to ensure a consensus is the reason this legislation is meeting with such approval.

While I am conscious of the importance of the Bill I will not take too long. It is larger even than the Finance Bill which comes before the House once a year. I am conscious of the efforts the Department has put into the Bill to ensure our artists are protected. That is long overdue. For far too long we have allowed the situation to continue where they did not get the benefit of their works. The Bill reflects this fact. I recognise there will be many amendments on Committee Stage, including Government amendments.

What does the public think about copyright and what does it know about it? I am always impressed when Government Departments send out documentation or are prepared to explain publicly what Bills are about. The Revenue Commissioners are getting at it and at explaining to people their rights. The Department of Social, Community and Family Affairs is also very good in that it issues a yearly booklet. No later than this week we had from the Minister for Finance an explanation on how best your pension can work for you, its importance and the benefits to people generally. If the Minister were to speak to people generally about copyright they might not know what exactly it means. Given the importance of this Bill, a leaflet explaining its purpose and what it is about should be issued to each household.

There are many references in the Bill to collecting agencies and what they are entitled to. People do not like the like the word "agent". There would be a better understanding generally about the Bill if their role was explained. However, this matter will be discussed on Committee Stage.

We often wonder whether libraries are being widely used . As one who never uses the library I am more than surprised at the number of people who like to ensure that every facility possible is in our libraries. Senator Ó Murchú mentioned the types of people who use the libraries. Many people like to use them for the purpose of listening to taped music. I attended a meeting held in a library in Cork recently and was more than surprised at the range of tapes available and the number of people availing of them.

What is the position about costs? Is there a cost on libraries from the person who provides the tapes or his collection agent? Will all local authorities have to pay royalties for all music played in their public offices? While I do not sit down in a library – I do not have the time – I derive great comfort from watching other people use these facilities. More people are using them. We do not want to be in a position where local authorities will have to pay more royalties for the use of music in public areas such as libraries and royalties on books.

There is an argument about whether royalties should be paid to the writer of a book who provides material to universities and libraries. Under section 187, which deals with the delivery of certain materials to libraries, a person does not have to provide such material if they feel it would prejudice their own interest. If it prejudices their own interests to provide a free copy they do not have to provide a particular tape, book or otherwise.

The Bill is very important. The artists leaving Ireland today are of the highest calibre. Some of the best groups in the world are Irish. They have top ten hits with different types of music. As has been said, they are a class apart and I am proud of people from Cork who perform internationally. I am also proud of U2, The Corrs and others.

The success of the Riverdance show must warm the cockles of everybody's heart. However, it should not be possible for the rights to that show to be taken away from the people who created it. The creators of Riverdance should be congratulated because they put Ireland on the map. We are now known around the world because of the show and others which developed from it. The people who worked behind the scenes, the producers and those who came up with the idea deserve great credit. They should benefit from the Bill, which is long overdue. However, we must not ignore other areas. For example, are RTE and local radio stations sufficiently protected? We must ensure that some people do not get too many rights.

I was a publican for many years and one wondered whether one had the right to have the local station on in the pub or whether people in the bar had the right to listen to the radio. The impression was given by certain collecting agen cies that people did not have this right. It is disturbing that people can walk in and make demands because people are listening to the local radio or a tape while having a drink in a pub. This is a serious difficulty of which many people are not aware. It is most important that this Bill is explained to the public in a booklet. The general impression may be that it is not important to the public, but that is not my view.

I congratulate the Minister of State on the Bill. However, some people in Cork are worried about certain sections of it because they may not have facilities in the future which they have free of charge at present. This matter is under consideration on all sides and I hope it will be dealt with on Committee Stage. I wish the Bill well, although it will not be passed easily. People have much to say about it and, although I am not the most qualified person to speak about it, I am conscious of the need to ensure that everybody has the same rights under the Bill. It is important that we do not go too far by providing that some people will have all the rights and others will have none.

As a publisher I must declare an interest in the Bill. I pressed the Minister of State when legislation was before the House last year and I ask him to clarify in his reply the position regarding section 122(3) and (4). I understand these might undermine the presumption in favour of the plaintiffs contained in the Bill. I felt strongly about this matter during the debate on the previous legislation and the Minister assured me on that occasion that he would consider it and clarify the position to ensure there would be no doubt whatsoever in the event of a dispute where the parties go to court.

In the past many people did not know much about intellectual property and did not have much respect for it. The pop group U2 opened the doors in Ireland and encouraged young people with a talent for songwriting and performance to get involved with record companies and publishers. U2 demonstrated that they could have a future in this area and gain enormous wealth. The success of U2 as the first major Irish act showed the way for many other Irish artists who have since achieved international success. I compliment U2 and their manager, Mr. Paul McGuinness, for giving young people from humble backgrounds, but who had the talent and ability, the opportunity to get involved in the music business and to become extremely successful and wealthy.

Many Irish acts have reaped the benefit of the success of U2 and followed their good example in terms of achievement. These artists have been wonderful ambassadors for Ireland and an inspiration to young people all over the world. They have also enhanced Ireland's tourism industry and I compliment the team behind Riverdance and Lord of the Dance for providing opportunities for our wonderful Irish dancing and culture which Senators Mooney, Ó Murchú and Dino Cregan mentioned. There are no better ambassadors for a country than its music and song and Ireland is a rich nation in that regard. Irish music is a trade name recognised throughout the world, as are various other types of music. However, none of them is stronger than Irish music in terms of its potential.

This potential has been recognised by the Government and the Minister of State. I compliment him because introducing a Bill which contains 355 sections is a formidable challenge for him and his officials. An enormous amount of work has been done by the parliamentary draftsmen, the officials, the Minister of State, IMRO, Mr. Dick Doyle and others who are experts in the field of copyright.

The computer industry in Ireland has enormous potential and it must be protected. Ireland is the second largest manufacturer, after America, of computer software and we are extremely proud of this fact.

This legislation is possibly one of the most important Bills to come before the House in my 17 years as a Member of the Seanad. The Bill is being treated as such and since I became Leader of the House on 27 June 1997 a period of an hour for spokespersons to make their Second Stage contributions has not been provided on any other legislation. I recognise the importance of the Bill and I have had long and arduous discussions with Senator Mooney and Senator Ó Murchú whom I regard as experts in this field. We may have been behind in terms of amending legislation, but after the Bill is passed by both Houses, many governments and countries will copy and enact many of its sections. It is the most advanced and up to date legislation of its kind in the world. It is a fantastic Bill and I congratulate the Minister of State and all those associated with bringing it before the House.

The protection of an industry is vital to its success. When the work of international artists such as Michael Jackson is performed or played on radio, they receive a royalty. A licence must be obtained for it to be performed in a hairdressing salon, a pub or a restaurant.

Three licensing authorities in Ireland protect the rights of the writer of a piece of music. Royalties are paid from Ireland to writers from countries who have signed the Berne Convention, under EU regulations and the GATT agreement. That does not happen in other countries and the USA stands indicted on this point. One of the most popular songs of the last ten years is "The Fields of Athenry", which can be heard at Celtic matches in Scotland, when Galway play in the All-Ireland Final at Croke Park and when the Irish soccer team play in Rome and elsewhere. Mr. Pete St. John, the brilliant writer of that song, received practically no money from Irish pubs and restaurants or other places where that song was performed in the US. It is regrettable and shameful. I congratulate IMRO for the massive amount of work it does on behalf of Irish writers to obtain fair play. It is now being supported by the European Commission. We pay Irish writers because it is just and fair, as it is for writers from other countries.

We attend the World Music Publishers conference in Cannes every year and the Minister of State would be most welcome to join us on the Irish stand, even if only for one day. This year 72 Irish companies sold their wares to other nations. It would be a much appreciated boost to the efforts of young people, whether they are writers or performers, if the Minister of State attended the next conference, which will be held in the last week of January. To his eternal credit the former Minister, Deputy Michael Higgins, gave us such a vote of confidence one year by attending the conference and hosting a dinner for all the Irish delegates. Most young people involved in music do not draw unemployment assistance even if they have less than £5 in their pockets. They stay up all night writing songs and trying to make a living. It would be a small gesture but it would mean a lot to young people and writers in general if the Minister of State attended the next conference, the first of the new millennium.

We are fortunate that the Minister of State's attitude is right. He understands the music business and he is a musician, or at least he likes to think he could perform as well as most amateurs. I compliment him because I had the chance to hear his talents in the US a few years ago. He performed in an amateur capacity which meant he did not get paid.

It was not an amateur performance.

It is good to have a Minister of State who understands the music business and whose heart is in the right place. It is all about attitude and the former Minister, Deputy Michael Higgins – another Galway man – also had the right attitude also. We are fortunate that the Minister of State holds this portfolio. We are pushing an open door.

If the position in the US can be changed substantial amounts of money could be raised for Irish artists. The population of Ireland is 4 million but there are 258 million people in the US. This shows the potential for an artist to make a career, because he could raise as much revenue from two or three successful songs in the US as he could from 200 or 300 in Ireland.

Irish pubs are popular all over the world and the work of Irish songwriters is performed there. From Sydney to South Africa Irish pubs are the "in" thing and I would estimate that there are 1,700 of them in the world. We can contact them over the Internet to tell them about new releases by various artists. It is easy to see how popular Irish music is around the world.

I will not be long-winded or repeat points made by other speakers. To respond to queries on the Order of Business, it is envisaged to take Committee Stage of this Bill in the first week of June, which will give Senators, the Minister of State and the various interested groups time to consider and prepare amendments. I wish the Bill well and congratulate the Minister of State for bringing it to the House. I am grateful to the Taoiseach and the Government for allowing it to be initiated here. It is wonderful that Senators have the first opportunity to make our views known and to suggest amendments to enhance the Bill.

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.

Question put and agreed to.
Committee Stage ordered for 15 June 1999.
Sitting suspended at 12.25 p.m. and resumed at 2 p.m.