According to section 1(2), the Act "shall come into operation on such day or days as the Minister may by order or orders either generally or with reference to any particular purpose appoint". What timescale is in mind here given that the Department cannot produce amendments for Committee Stage in the House, apparently because we did not give them enough time? Within what timescale does he expect his Department to implement a Bill of this complexity if, after a period sufficient for mere Independent Members, of which I was one, and mere Members of a small group, of which I am one, to produce amendments, the capacity of a Department cannot produce a single amendment to the Bill? Perhaps he believes it is perfect.
Copyright and Related Rights Bill, 1999: Committee Stage. SECTION 1.
I propose that the Bill should be enacted by the end of the year. I appreciate we have not tabled any amendments, but a great deal of consultation is taking place. We underwent a lengthy process of consultation in preparation for the Bill. We produced draft legislation which was made available to Members of both Houses and to those who had an interest in the area, be they the public or those with a vested interest. That has been a useful process and we are still in consultation with a number of individuals.
I am glad that the Bill was introduced in the Seanad. My previous appearance here in connection with the Bill was the first occasion on which I had been present in the House for a Second Stage debate. At this point, we have no amendments prepared for Committee Stage but a number of amendments, some of which were late in arriving, have been tabled by Opposition Members.
It is a bit rich of the Minister of State to criticise Opposition Members for being late in tabling amendments, given that his Department has failed to table any.
I am here to listen and I suggest that we commence our business as soon as possible.
I do not want to debate this matter at length. However, no Minister would enter the Dáil and state that the Government did not intend to table amendments on Committee Stage because of ongoing consultations with outside interests. That would be regarded as a contemptuous statement and it would not be made in the Dáil. However, such a statement has just been made here. The Minister of State has actually indicated that the Seanad's deliberations on the Bill can proceed because they are of no real importance but that, following consultation with important outside interests, amendments will be introduced in the Dáil. That is quite offensive.
I do not intend to start the day on the wrong note and I do not want my comments to be misinterpreted. We had a lengthy and useful debate on Second Stage and there are many Members, including Senator Ryan, who have invested a great deal of work in their consideration of the Bill. People raised a number of issues on Second Stage which I will be interested in debating during the course of Committee Stage. However, the essence of democracy involves bringing the Bill through, in this instance, the Seanad and then the Dáil. I welcome the opportunity to debate the Bill, given the build up of legislation to be dealt with in the run up to the summer recess.
I intend to approach this debate with an open mind, particularly in respect of listening to the Senators' contributions. I do not want to start the debate on the wrong note in that sense. I wish to make it clear that I have no intention of giving a signal that this House should be treated any differently from the Lower House.
I must stress the point that there will always be ongoing consultations on a Bill as complex as the one before the House. My officials have been working on this legislation on my behalf for the best part of two years. Changes have been made and I have no doubt that further changes will be made here. I am in Senators' hands with regard to the action to be taken from this point forward. I have come before the House with a view to listening to Members' contributions. I do not want anyone to be under the mistaken impression that I am merely going through the motions.
I agree with the concerns expressed by Senator Ryan because of the small number of amendments which have been tabled. I am aware that a great deal of work has been invested in producing this 195 page Bill and I welcome the fact that it was introduced in the Seanad. I welcome the fact that discussions on the Bill are ongoing but, like Senator Ryan, I am also concerned that this is the case. If the Minister of State can confirm that he is willing to accept amendments and listen to Members' contributions, that the Bill is not afait accompli and that acceptance of amendments will not be confined to those tabled in the Dáil, he will do much to lay many of my concerns and those of Senator Ryan to rest.
I am disappointed that no amendments have been tabled to this 195 page Bill, the second largest item of legislation to come before the House during Senator Cassidy's period of service here. Virtually all of the amendments were tabled by the Independents and the Labour Party, with a small number being put forward by Fine Gael. The House must invest a great deal of effort if Members are to state that the work we do deserves attention. Members will be obliged to shoulder a certain amount of the blame if they do not participate to the degree that people expect of us. I welcome the Minister of State and the Bill. I hope he will state that he is willing to give every consideration to our arguments and accept our amendments.
I am willing to listen to the Members' views and take on board appropriate suggestions. However, I must make the fundamental point that this is a good Bill which has been put together in a painstaking way following consultation with Members of this House, the Lower House and representatives of the many lobby groups referred to on Second Stage. In my opinion this is a good, solid item of legislation and its introduction was necessary for many reasons. On Second Stage, Senators Quinn, Ryan and others stressed the importance of enacting it as soon as possible. Not least among the reasons for doing so are our international obligations in this area.
I reiterate that this is a good Bill and that I am here to listen to Members' views. I referred to ongoing discussions but it was not my intention to suggest that these are in any way comprehensive in nature. They merely involve tying up a number of loose ends. In my opinion it is the duty of Members and myself to try to bring together those loose ends.
I appreciate the points made by the Minister of State and my learned friends, Senators Ryan and Quinn. Everyone's intentions in dealing with the Bill are good. On Second Stage, Members were given to understand that, because the Bill is so weighty, necessary and important, the Government would consider tabling amendments. I appreciate that because of consultations with the Attorney General, etc., these amendments have not yet appeared and I have no objections in that regard. I do not believe we will complete Committee Stage today and I suggest that we postpone our deliberations for a number of weeks in order to allow the Government to table amendments.
In light of the fact that the Bill was introduced in this House, Members would like the opportunity to deal with any Government amendments which may be tabled. I have no intention of anticipating the content of those amendments and, therefore, I suggest that the Minister of State return to the House to continue the debate, perhaps after the summer recess. The Government should table its amendments when it is ready to do so and we should not dispose hastily of this measure. As the Cathaoirleach pointed out to me on the Order of Business, the Leader did not intimate that our deliberations on the Bill would conclude today. Will the Minister of State indicate that he will return to the House with the Government's amendments when he is ready to do so?
For the information of Senator Coghlan, the Chair must point out that we must proceed in accordance with the Standing Orders of the House.
I am becoming cranky as I get older and I had better restore my good humour and stop complaining. I am disappointed that the Government has not tabled amendments. That is not good enough. However, we must proceed with our business. We are not going to conclude our deliberations today and even if the Minister of State wanted to do so, I can guarantee him that we will not. I am sure Senator Coghlan will confirm my assertion.
As a matter of principle, Governments should not commence the Committee Stage of Bills until they are ready to produce amendments. I accept that this is a good Bill. I stated on Second Stage that I had enormous regard for the Minister of State and his officials for having produced this complex legislation and for the extraordinary lengths to which they went to ensure that it is technologically neutral. However, that does not alter the fact that Members on this side of the House, with their limited resources, were obliged to produce amendments while others have stated that they will do so later. At some time in the future we will have to deal with Report Stage to consider numerous amendments from the Dáil and that will not be a pleasant experience.
I welcome the Minister of State and the Bill. When I asked him whether he was willing to take amendments he replied that he would listen carefully. I did not hear him say he was willing to take amendments. I would love to hear those words.
I am always willing to take amendments.
In response to Senator Coghlan and other Members' questions about Government amendments, I do not suggest there will be many amendments. Some loose ends are being examined. I could come back to the House in a fortnight. If Members agree to this I can keep in touch with the House and I will endeavour to tie up any loose ends.
I do not want to overstate the fact that we have some amendments. If I criticised Senator Ryan and other Members for tabling late amendments, I withdraw my remarks. Having spent time in Opposition I can appreciate the pressure placed on Members when tabling amendments.
My proposal deals with substantial issues that need to be dealt with. I assure Senator Quinn that I am happy to accept amendments if they fit in with the thrust of the Bill.
I move amendment No. 1:
In page 27, between lines 6 and 7, to insert the following definition:
"the Internet means any network of computers and the technology which links them to which members of the public have access either with or without charge;"
Talk about walking in where angels fear to tread. I want to restore the usual good relations I have with the Minister of State by saying that any criticisms I may have are directed towards the Bill.
There is a degree of avoiding a definition in the Bill through the use of the phrase "the Internet". I know it is difficult to insert a definition. It would be easier for the Minister of State if he accepted my definition. I am proud of it. It took me a long time to define the Internet. If we end up in the High Court or the Supreme Court with a group of judges, particularly in the Supreme Court, the term "the Internet" might be meaningless to the Judiciary. The Irish Judiciary is a lot more in touch with reality than its British counterpart. There are wonderful examples of commonplace phrases having to be explained to senior members of the British judiciary.
The Internet is the greatest new publishing medium since television was invented. It is a new vehicle of communication which is not encompassed by any other definition. My amendment endeavours, through the use of plain language, to insert what I understand to be the Internet – that it is a network of computers and the tech nology which links them together. The success of the Internet is due to the technology which links computers through a variety of routes and if one route fails the system will look for one that will work. As the Minister of State and the House are aware, the Internet was devised by the Pentagon to minimise the risk of an enemy wiping out the US computer network. It created a system that would continuously search for different routes and their work resulted in the Internet. All subsequent advances in Internet technology are measures to make it easier to use and increase the quantity and quality of information available. For example, a system of transmitting sound was introduced, then images and now video. I do not know when these advances will cease. The essence of the Internet is that it is a network of computers linked by technology and is accessible to the public. If the public could not gain access to the Internet it would be what is an intranet.
The definition contained in the Bill is weak. We should not allow legislation to pass without a serious attempt to define the Internet. This Bill will be tested in the courts. Therefore, we must provide a definition that will explain to the Judiciary what is meant by the Houses of the Oireachtas when we use the term "the Internet". In many ways the term "the Internet" is colloquial slang.
I appreciate the concern expressed by the Senator that the Internet should be properly defined for the purpose of this legislation, in particular in view of the paramount importance of this means of communication in the information age. With that in mind I will give further consideration to whether a detailed definition is required. As a range of elements constitute what is commonly known as the Internet, I would be concerned that any definition attempting precision would risk omitting an important element or including an element that should not be included.
I thank Senator Ryan for tabling his amendment which contains a helpful definition of the Internet. However, it seems possible that his definition could be deemed to include systems of electronic communication which are not part of what is regarded as the Internet. The Bill refers to closed communication networks or intranets run by public or private bodies which are accessible to the public. Given the difficulty which must attend arriving at a satisfactory definition of the Internet in the context of legislation, I consider it would be better to leave the matter open and subject to determination by the Courts on a case by case basis in those rare instances where serious definition problems may arise.
Senator Ryan made a good argument for the need to clarify the situation. I will give the matter further consideration. Subject to that consideration, I ask the Senator to withdraw his amendment.
Is the amendment being pressed?
I have not decided whether I want to press it. I do not want to make a big issue out of my definition. However, it is a big issue when we realise we have rapid growth in this medium of communications.
The Internet is overrated. It serves some purpose but it is neither as revolutionary as television nor as pervasive. Anyone who uses the Internet as often as I do will realise that it is more trouble than it is worth in its present state. It is easier to search for printed sources. The Internet is a good medium to search for where to look, so to speak, but it is not so good when it comes to searching for written material. I can use the Internet to check if the library in UCD has a book I cannot find in CIT.
The Internet is new but it would have taken me too long and have been beyond my intellectual resources to create a descriptive definition. We could produce and offer pointers to the courts. We cannot simply say there is now something in existence called the lnternet but we do not know what it is and cannot define it in law.
I contrast our coyness about the Internet with the definition of a cable programme service, a definition which, as I said on Second Stage, I spent considerable time trying to make sense of. If we can define a cable programme service, we can at least attempt to offer guidelines to the courts on what is the Internet. Incidentally, an intranet, to which the public has access, is part of the Internet as far as I and most people are concerned. If it is not, we have another problem.
The alternative would be to leave the phrase "the Internet" out of the legislation completely and talk about networks of computers to which the public has access, one of which would be the lnternet. The phrase "the Internet" is only a bit of colloquial jargon. It is not a technical term but colloquial jargon which is owned by nobody and which one would probably not find in a dictionary more than five years old. The alternative to defining the phrase is to leave it out completely and to simply refer to networks of computers. To include the phrase "the Internet" without defining it is to invite trouble. To say it would be defined by the courts on a case by case basis is to cop out of our responsibility as legislators.
I support the concerns of Senator Ryan who has a case to make. It is a very new word and, therefore, it is quite likely that in ten, 20 or 30 years time, it may not apply because it may not have that life. That is probably the thinking behind it. The Minister does not intend this legislation to last for five or ten years only but for a generation or two and, therefore, we must take a long-term view. Senator Ryan makes a very strong case. I am happy with the Minister's response that he will consider the matter and see if there is a way in which he can overcome it.
I appreciate the comments of both Senators and reiterate that I will look again at the question of definition. In the context of the information society directives from Brussels, there are, as the Senator rightly said, many aspects to this debate and he mentioned the intranet element as well. I am happy to examine the matter and ask the Senator to withdraw the amendment.
I would like to draw the Minister's attention to a fundamental issue regarding definitions. Although I have not tabled an amendment, I would like to talk about the wisdom or practicality of turfing computer programmes into the same box as a literary composition. I hope the House will bear with me as I go into considerable detail on this issue. It is a very complicated matter but since it is so specialised, it is proper to discuss it on Committee Stage rather than on Report Stage.
There are a number of radical differences between a conventional piece of writing and a computer programme. These differences should be relevant to how we treat the issue of copyright. When it comes to conventional writing, including fiction or non-fiction or writing without any literary merit, we tend to apply the same test as to originality and, therefore, to ownership of that copyright. We look at two works of writing each claiming copyright and, in each case, ask if it is an original. If we look at the second piece of writing and see sentences which are exactly the same as those in the earlier work, we immediately begin to deny its originality. We say the later work plagiarised the first one. That is the same as saying the later work infringed the copyright of the first work. That is natural and is what we do when we look at written works of fiction or non-fiction.
A case for infringement of copyright of this type would take exactly the same form, irrespective of the type of writing involved. One would go through the work line by line and if one found each sentence was the same as that in an earlier work, one would consider it to have been copied and, therefore, an infringement of copyright and that the author had cheated. The seriousness of the infringement would depend on how many sentences were duplicated in that way. That is the way we have done this for years and is the way normal writing takes place.
We should note that this would not apply to words as they are merely the building blocks of writing. If we see sentences which are identical to those in an earlier work, we say a person has copied. If we see a word which is the same as that in an earlier work, we say there is nothing wrong with that. This does not apply to words which are merely the building blocks of writing. Words have no form until they are put together. Once they are put together and have meaning, they become a composition and come under the protection of copyright. This is a fundamental point, and one which 1 had some difficulty trying to put together, so I am sorry if I am labouring the point.
Imagine if one went through a second work and found not only sentences which were exactly the same as in the early work but whole paragraphs. What would one do? The case for infringement of copyright would get stronger and one would say the author had infringed copyright. If one found whole chapters of the work were identical, one would consider one had an open and shut case and that one book was a copy of the other and, therefore, the author had infringed copyright. This would apply even if the works had a different thrust and intention. The total work does not have to be identical to be guilty of a copyright infringement but if sentences, paragraphs and chapters are identical one would say one had an open and shut case. If a work, however different in totality, includes large slices of another work, there is a copyright infringement.
This test of originality is exactly the same no matter what the nature of the conventional written composition. If one finds sentences, paragraphs and chapters which are identical, one would say the author had infringed the copyright of the person who wrote the earlier work. Whether it is a novel, a piece of journalism, a speech, a sermon or a song, one follows the same procedure.
Given that is the case, I have a major problem treating computer programmes in exactly the same way. The reason is that it is impossible to apply the same test of originality. It is impossible to deal with the question of whether copying has taken place in the same way, or even if it has taken place at all. There is a radical difference. The difference arises because no computer programme in this day and age is entirely original. A computer programmer does not sit down and write a complete programme from scratch. If he or she were to do that, it would take months or even years to write programmes which are relatively simple or even trivial. In writing a programme, a programmer leans heavily on existing material, whereas in conventional writing it is a matter of pride to be original throughout. A test of the ability of programmers is the extent to which they can use routines and sub-routines which have been created by somebody else.
I will give an example because I found it difficult to explain this point at home last night. I will take the example of cooking, although I am not sure if the Minister is interested in it. I love cooking but am not very good at it. If one wants to create a recipe for making soufflé, there are two ways to go about it. One could list every action the cook must take or could use shorthand to describe a cluster of actions under one label which would be known to the reader. One could take milk, flour and cheese and so on through a complicated series of actions which would result in a sauce or one could simply say "make a béchamel sauce". That is a very good example of the point I am trying to make. A computer programmer will not take the long route. Using the cooking analogy, he will not say take flour, milk and cheese and make a sauce but will say "make a béchamel sauce". He will take that short cut and will not take the longer route. The programmer will not write line after line of code to make a béchamel sauce.
Equally – this point is critical to the argument – the programmer will not say in the programme "make a béchamel sauce" as a recipe writer would if writing for professional cooks. Computers do not understand shorthand. Fundamentally, computers are very stupid and need an entire set of instructions. A computer programmer takes down the sub-recipes and drops them into the programme wherever they are needed. As soon as a programmer comes to a task which can be done by a sub-routine which already exists, he or she will reach for the sub-routine and drop it into the programme. This is considerably different from what happens when writing a book. The upshot is that, as a percentage of borrowed material, sub-routines may account for most of the programme and most of the programmer's work.
A trial lawyer could go through a programme line by line and point time and again to large chunks which are not original. If a lawyer applies the same tests to a computer programme as one would to a conventional piece of writing, then no computer programme would pass the test of originality. This is a crucial point, as here we are not distinguishing between the two. Clearly, computer programmes can be original and author rights to computer programmes must be protected. It is a highly important issue and is becoming more so every day. However, are the provisions in the Bill the way to address the issue? I wonder if we are going down the wrong road by trying to force computer programmes into a mould in which they simply do not fit. I would like to hear the arguments for treating them in this way as I do not think the provisions have been thought through. I hope an argument exists other than the simplistic one which says that this is how other countries are doing it and that is why we are adopting such an approach.
I hope my point is understood as there is clearly an essential difference between the way an author writes a book and does not and should not copy sentences, paragraphs and chapters and the way a computer programme, which aims to do something innovative, takes chunks from programmes already in existence.
Another reason we should be slow to treat computer programmes the same as conventional works of composition concerns the length of copyright protection we give written works and the role computer programmes play in pushing forward an entire envelope of progress. Copyright in conventional written works lasts in gen eral for the lifetime of the author and 50 years after the death of the author, which will be extended to 70 years under this Bill. This means it could be well over a century before copyright lapses. This is fine as the existence of copyright protection in no way inhibits the influence of a work. As our colleague, Senator Norris, continually reminds us, James Joyce has had a seminal influence on the English language this century. On television in the past few days Senator Norris made a very strong case that Joyce is perhaps the strongest influence on the English language this century. We may not necessarily all agree with this, but the influence of Joyce has been dramatic. The fact that Joyce's work is still under copyright has had no impact on its influence one way or another. However, it is radically different when we talk about computer programmes. For as long as a computer programme is protected by copyright a halt can be put on innovation and society can be prevented from gaining and sharing the full benefits of the innovation. It is necessary to create a somewhat different balance between literature and computer programmes.
I wish to consider patents, which are a different way of protecting intellectual property rights. Patent protection is necessary so that an inventor can be properly rewarded. Because of this reward inventors will be stimulated to put time and effort into inventions. If patent protection did not exist there would be little or no invention. On the other hand patent protection is extremely limited in terms of the length of time it applies and it is worth considering why this is so. It is limited because the State recognises that while an inventor has exclusive control of their invention, they will restrict its use in order to maximise profit. This greatly restricts the widest possible public from benefiting from the invention and in general slows the pace of progress and the degree to which society benefits from innovation. Therefore, patents are restricted in time in order to balance these factors in the interests of society. I am not quite sure, but I think the maximum time for a patent is two terms of 16 years, a period which is very short in comparison with the length of time which applies to copyright protection. Therefore, there is a difference between patent protection and copyright protection.
The overall point I am making is that the intellectual property rights in computer programmes pose an issue for society in a way that similar rights in conventional written works do not. Society's ability to reap the full benefit from ordinary written works is not severely restricted by copyright protection, though some people might argue that it is. There is no doubt, however, that society's ability to reap the benefits of innovation in the area of computer programming will be severely restricted by giving computer programmes such a long period of protection. The owners of the copyright of computer programmes benefit from such a long period of protection at the expense of society. These are the two interests in contention and the Minister must find a way of striking the right balance.
I wish to raise two further facts which are relevant to consideration of this issue. Firstly, despite the explosion of programming rights around the world, there are very serious centralising influences at work and a very real danger that a global monopoly will be created in certain kinds of computer programmes. One company in particular, Microsoft, owns the rights to the operating systems used in over 90 per cent of all personal computers worldwide. One only has to read the newspapers to see how aggressively that company seeks to extend its interests into new areas. This happens time after time and governments are making efforts to try to avoid it. Secondly, we are discussing this because of pressure put on the country by the US to get our act together on copyright, something referred to by the Minister. I fully agree that we should do so. Given our potential to become a leader in electronic commerce, it is a scandal we have not put modern copyright legislation on the Statute Book long before now, and I congratulate the Minister for taking hold of this challenge and bringing forward the Bill. It is a shame that to a certain extent we had to be hustled into doing so by somebody else, rather than recognising the opportunities five or ten years ago. Because we are being hustled into action and are coming under such pressure to pass the Bill this year, which is quite quickly, we should ask in whose interests we are acting.
How we define computer programmes in the Bill becomes a matter of major importance. Treating them in the same way as conventional written works is unsuitable and impractical because of the radical difference between written works and computer programmes. More importantly, the manner in which we treat computer programmes has commercial and international significance. The longer the term of protection granted to computer programmes the more we will see very valuable benefit going to the large software producers and the more we will benefit the commercial interests of one country in particular which is not a member of the EU.
I look forward to hearing the detailed rationale for treating computer programmes in this way. I do not apologise for spending so long on this issue because it is important and I do not think it has been considered in general or in the Bill. I would welcome a response to the challenge to find a way around the problem. We are in a position where we are treating two items similarly but they deserve to be treated differently. Otherwise, we will end up with far bigger problems in the years ahead and, more particularly, we will lose the opportunity to introduce a much better law which will benefit the nation.
There are a couple of points I want to make in response to Senator Quinn which relate to computer programming. While the Senator has a valid point, computer programmes, as anyone who has written them would understand, contain a person's ideas, and their design and thought processes. That must be protected. If programmes are not to be protected by copyright, then each time a person writes a computer programme it will have to be patented. That will not work. It is not practical.
If we do not continue to protect computer programmes, particularly those of people in this country, so that they cannot be taken over by a larger producer like Microsoft, many companies will suffer.
I should declare that this is my business – I am involved in software development and I have written programmes and I have a personal interest in it. If I write a programme which I can sell to somebody else, I want it protected for as long as is necessary. With the way computer programming and technology develops, the fact that it is protected for 70 years does not make any difference. For instance, a programme I wrote three weeks ago will probably not be of any benefit in three months or three years because the techniques and tools used to write that programme change considerably.
While Senator Quinn's points are valuable and thought provoking, the way the Bill treats computer programmes will not stymie the development of programmes, programmers or the technology. It does involve a challenge and I am interested to hear what the Minister of State has to say about it. However, after all the work that has gone into this Bill, particularly with regard to small software developers, I would be against a move away from the protection given to them in the Bill.
We are in the ridiculous position that society has apparently decided to fit something entirely new into an old container. The real problem is that neither patent law nor copyright law is appropriate to software. There ought to be a separate independent legislative procedure to protect computer software because it is most clearly not a literary work and, as I argued on Second Stage, it is not comparable with a pharmaceutical product, the type of product with which I would be most familiar and on which there is usually a 15 year patent. The proponents of the pharmaceutical industry in the region in which I live are most eloquent whingers on their own behalf about the painful difficulty this poses for them. They use it as an excuse for not innovating, ludicrous pricing and many other actions.
In the long-term it means that the consumers benefit because, after 15 years in which the companies have received multiple pounds of consumers' flesh for whatever product, there are other people who may begin to innovate, change and produce more cheaply. It stimulates all the multinational pharmaceutical companies to keep looking for new developments which are of benefit to consumers, not for new ways of making old products differently for the benefit of the producer.
There is a widely held view among consumers and users of computer software that they are the victims of software producers, not the people about whom Senator Cox spoke who fill little niche markets and which is something many Irish software houses do extremely well, but the company which produces 90 per cent of operating systems in use, for instance. No user I know believes that firm operates to try to improve the good of the consumer. That firm is operating to try to improve the good of the producer and it does not operate in a competitive market, the conventional economic textbook definition of which is that there should be enough competitors in the market such that the disappearance of one would not affect the marketplace. Such a market does not exist in the case of computer software.
The real solution is neither the use of copyright nor patent law but a way of protecting the legitimate concerns of people who write software while at the same time remembering that the market economy works when, to quote Senator Quinn, the customer is king. If that is not one's driving force, there will be stagnation and inappropriate innovation, that is, innovation which is done to make life difficult for consumers. That happens continually. Many people are required consistently to upgrade computer software, not because they feel the need to do so or because they feel any inadequacy with their present software, but because something they need will no longer work because the computer software manufacturers have changed it. Nobody can get around that because there is a 70 year patent. The real solution is to move away from either patent law or copyright law.
We are tied down by the TRIPS convention, among others, to accepting the nonsense that software is literary work. I particularly like what McAuley said about copyright, that it was a tax on readers for the purposes of giving a bounty to writers. If that is the case about copyright on literary works, it is most manifestly true about copyright when it comes to Mr. Bill Gates.
The question of patenting as a means of protecting computer software has been the subject of some debate and the Senator raised this on Second Stage. I pointed out and he recognised that as the law stands copyright is the normal basis upon which intellectual property rights in computer programmes are protected. This is underscored by the EU Computer Programme Directive and in international law by the World Intellectual Property Organisation Copyright Treaty of December 1996. These instruments require that computer programmes be protected under copyright as literary works.
I listened carefully to Senator Quinn. I accept that the inclusion of computer programmes among literary works is rather artificial. There is no question about that. I have gone through this issue, particularly with Senator Ryan on Second Stage, and I made the case which I will not repeat here. I must work with the international obligations with which I am presented. They are the main basis for the protection of such assets in international law. They are also an effective protection of software rights and this is important to the economy.
I value the contribution of Senator Cox, who is personally aware of how computer programmes change. In practice, copyright protection has great practical advantage over patents, particularly in protecting computer programmes. It is also very expeditious as there are not any registration formalities.
I must act in accordance with the Berne Convention and EU international law which requires that computer programmes be treated in the same way as literary works in regard to copyright protection. The debate has been very valuable. I am conscious that there is an ongoing global debate about the issue of patenting as a means of protecting computer software. I will follow that debate as closely as Senators will but I have no option as to how I proceed on this issue.
I take Senator Cox's point and I am aware of the problems and difficulties involved. I believe we are in danger of ignoring the problems and creating greater problems in the future. The Minister has carried out a great deal of work on this 195 page document. It seems a shame to produce something knowing there are problems associated with it. I appreciate that the Berne Convention limits the Minister's scope in this regard.
Senator Cox spoke about the need to protect small computer programmers. I understand that. We appear to be treating computer programmes in the same way as literary works. If a particular sentence, paragraph or chapter in a book is clearly copied from something else, that is a breach of copyright. Likewise, if one uses particular sentences, paragraphs and chapters written by someone else in a computer programme, there is a need to offer some protection to the author even though the overall programme may be totally different. I do not have the solution to this matter but I am concerned that if we do not face up to the problems, we are in danger of producing something which will not last and will not be good law. In fact, it may result in the inhibition of the very talents, referred to by Senator Cox, which we wish to encourage.
There is something almost surreal about the idea of imposing a 70 year time limit on computer software copyright. Virtually all pieces of computer software which are more than ten years old no longer work. Yet all of the restrictions of copyright law are being imposed on people who may want to use software for teaching purposes, in academic life or in a range of other areas. They are tied down by the limited freedom accorded to works protected by copy right. If someone, for example, wishes to deconstruct WordStar or an early version of a spreadsheet programme, he or she will be constrained by the provisions of copyright law. A time limit of 70 years is extraordinary in the field of computer software where antiquity is defined in the form of a couple of years and venerability is defined in ten years. People no longer use computer programmes written ten years ago.
It seems that a sledgehammer has been used here to crack a nut because a particular country has achieved dominance in certain areas and is determined to maintain that dominance. We do not have a competitive computer software market and this provision will ensure that. The timescale set down essentially means that nothing can ever be done to anything related to computer software.
Senator Ryan's idea is valid but he himself stated that software which is ten years old is not of any benefit to anyone. The Senator is being argumentative for the sake of it.
That may be true; it is in my nature to be argumentative.
I would rather we moved forward on this issue. Senator Quinn spoke about how we might offer real protection to computer programmes. We must undergo a thought process in regard to that. It makes no difference whether the time limit is 70 years or 140 years because after six months, a year or two years, particular computer programmes are merely a waste of space.
I am not in the business of defending Bill Gates or Microsoft. I recall trying to make money as a computer programmer in the days when the operating platform was not a level one. By virtue of that platform having now been levelled, anyone can write a programme which has mass attraction or sales capabilities. If I write a programme which runs on Microsoft Windows or Windows '95, I can sell it to the 90 per cent of PC owners throughout the world who use that operating software. The benefit of that is that my market would be much bigger. I accept that from Bill Gate's point of view, it means he is operating a virtual monopoly. However, his monopoly would work to my benefit if I were in the programme writing business.
I believe it would. In the past, we had a number of operating systems run by Digital, IBM and so on. That meant that the market was very limited and mass selling opportunities did not exist for programmers. We now have a level playing pitch.
I am sorry if Senator Cox thinks I was being argumentative. I simply conceded that I have a tendency to be argumentative. I was not agreeing that I was.
I work in an institute of technology which, like every other sector of third level education, is attempting to produce numbers of people qualified to work in the area of information technology. We cannot use redundant software – I am merely expressing my own view here – which is five years old to assist students to understand the processes involved. We cannot allow them to deconstruct, manipulate or change the software by making multiple copies without paying royalties to the copyright holders, even though the software is not of any use to anyone else. However, in the pharmaceutical area, we could take drugs which are 15 years old and legitimately invite students to replicate them.
I have no problem in regard to people's rights being defended. However, I believe the timescale is wrong and its effective consequence will be that innovation will be inhibited. It will not inhibit change but, in my view, innovation is something produced in the market which improves the consumer's position. Netscape is a classic example of software produced to work on a Microsoft operating system being undermined. It was quite improperly undermined because it posed a threat to the Microsoft quasi-monopoly which was in a position to use its muscle.
I support Senators Ryan and Quinn. The timescale for such a new technique seems to be quite ludicrous when Senator Cox said that the real timescale is weeks and months rather than years. We are trying to apply something to new technology which has applied very satisfactorily to technologies which have existed for 600 years.
I thank Senators for their contributions. Senator Cox raised many of the points I raised on Second Stage. I intend to follow the global debate on copyright and patenting. Computer software must be protected in the same way as literary works. For this reason the provision is life plus 70 years. We have no choice in the matter. While I welcome the debate, all these issues are outside my control. I am proceeding on the basis of the international obligations imposed on me.
The section states that an "anonymous work" means a work where the identity of the author is unknown or, in the case of a work of joint authorship, where the identity of the authors is unknown. How can an anonymous work have joint authors? How does one know there is more than one author? Perhaps the section should read, "where the identity of some of the authors is unknown".
This covers a case where the identity of all the authors is unknown. There may be more than one. Perhaps the wording can be improved.
I am not talking about pseudonyms but anonymous authorship. How does one know there is more than one author? The identity of some may be unknown.
Does the Senator have an amendment?
I do not; like the Minister of State, I was pushed for time. Perhaps the section should read "or, in the case of a work of joint authorship, where the identity of some of the authors is unknown".
Is music covered by this definition? Many musical tunes have been handed down and the authors are unknown. The same applies to storytelling.
The Senator has opened a large can of worms.
Subsection (7) refers to permanent collections. What is being done to ensure the so-called music rights organisations provide some justification for their actions in collecting royalties?
Other legislation also contains curious provisions. The 1963 Act copied a large portion of the 1959 Act dealing with unpublished manuscripts to ensure it would remain covered by copyrightin perpetuum. This meant that such items as laundry lists could be considered original manuscripts. That was never the intention. In view of this, should the provision under discussion be included?
While I take Senator Ryan's point it is possible that an anonymous work was produced by a husband and wife team and signed as A and B. This provision would cover such a case and it may be best to leave it as it is.
I agree with Senator Quinn's interpretation. There are anonymous musical works. The question of traditional music was dealt with comprehensively on Second Stage. The operations of IMRO were also the subject of a lengthy debate. I was given certain assurances regarding its activities which I conveyed to the House. It has reached agreement with Comhaltas Ceoltóiri Éireann. Obtaining the comments of these organisations was helpful.
The definition of "artistic work" does not include art work generated by computer. There is a huge new burgeoning area of creative art which involves the use of computers and multi-media and it would be unwise not to include it in the definition of "artistic work".
A definition of "computer-generated" is to be found on page 26 of the Bill. It reads:
"computer-generated", in relation to a work, means that the work is generated by computer in circumstances where the author of the work is not an individual. . .
That is not what I am talking about. There are artists who use computers to produce works of art and it is clear who the author is. The matter is probably covered satisfactorily by the definition of "works" but it is an omission not to include it in the definition of "artistic work". It would fit better.
I am prepared to look at the matter.
I have a problem with the definition of "cable programme service" which means a service, including MMDS, which consists wholly or mainly of sending sounds, images or data or any combination of sounds, images or data, or the representations thereof, by means of a telecommunications system. The problem is that a telecommunications system is defined as "a system for conveying sounds, data or information. . . . ". I apologise, it also refers to sounds and images. I made a mistake.
I am confused by section 2(1)(i) which states:
. . . but shall not include:
(i) a service or part of a service of which it is an essential feature that while sounds, images or data or any combination of sounds, images or data, or the representations thereof, are being conveyed by the person providing the service, there may be sent from each place of reception, by means of the same system or, as the case may be, the same part of it, data (other than signals sent for the operation or control of the service) for reception by the person providing the service or other persons receiving the service.
How does this fit with the gradual integration of Internet and cable television and radio services which, for instance, will happen in Dublin following the sale of Cablelink? Will the soon to be privatised Cablelink be providing a cable programme service, as it appears that once one makes the service interactive, one excludes it from the definition in the Bill?
My advice is that the definition refers to exclusively interactive systems, not a public service system.
I am trying to be helpful even though it may seem that I am being awkward. My concern is that the Director of Telecommunications Regulation will have to deal with some of these issues. She has enough problems without us adding to them. How is she going to distinguish between a cable programme service and an Internet service provider if they are on the same cable? Cable operators are also proposing to provide telecommunications services. How can we have different regulations for different services if they are all provided on the same cable, using the same medium and the same hardware?
The Senator is raising important technical issues which I would be happy to note and consider. The Bill is technical but the Senator has rightly pointed out that cable programming, MMDS and the role of the regulator are also very technical issues. I am happy to consider these issues but I will have to consult with other Departments.
This is a long and complex section about which there are valid questions to be asked. I discussed one of my concerns about the digitalisation of sounds and images with departmental officials. A sound recording is defined in the Bill as "a fixation of sounds, or of the representation thereof, from which the sounds are capable of being reproduced, regardless of the medium. . . . ".
Fixation is defined as the "the embodiment of sounds or images or any combination of sounds or images. . . . " My concern is that digitalisation involves the transformation of an image; it is the conversion of an image into something different. It is not a fixation or an embodiment, it is a transformation. It turns an image into something different and then turns it back into the original format. I would prefer to include the word "transformation" in the definitions.
My advice is that the representation refers to the transformed item. The Senator discussed this issue with my officials at some length.
I wish to move on to section 2(8). Senator Ryan may be two pages ahead of me but I do not want to move that far ahead unless the Senator is happy to do so.
I am happy with the definitions.
I wish to raise two matters concerning the language and content of section 2(8). During yesterday's debate on the Education (Welfare) Bill, I stated that I agreed with the recent call by the president of the Law Society for the use of clearer and simpler language in legislation. Nowhere is the need for clear and simple language more necessary than in copyright legislation. Many people create intellectual property but few of them can afford to employ expensive, high flying lawyers. These people should be able to read the legislation and get a broad idea of their rights.
Section 2(8) epitomises what the president of the Law Society was criticising when he was arguing against obscure language. This section is a real whopper and a classic example of the kind of nonsensical legislation we allow through almost every day. It is obscurantist to an unnecessary degree and it would do the reputation of the Oireachtas no good if a sharp journalist printed it in a newspaper as an example of the work of legislators.
The section states:
Where an act which would otherwise infringe any of the rights conferred by the Act is permitted under this Act it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act.
This passage is a classic case of what I am talking about; it uses two different interpretations of the word "act" in the same sentence. This may not be clear when read out but the two meanings are only differentiated by the use of upper and lower cases.
The word "act" appears four times in one sentence – twice in lower case and twice in upper case. When it appears in lower case it means action. When it appears in upper case it means a parliamentary Act. No elementary school teacher would permit such equivocation between two meanings of one word as it creates a risk of ambiguity and misunderstanding. If I had submitted such a sentence to my teacher he would have asked me to rephrase it, which is not difficult to do.
The president of the Law Society would not be impressed by this sentence, but he would be even less impressed by the overall phrasing of the sentence, which is considerably more difficult to understand by virtue of its convoluted and negative construction. That is my criticism of the language of the section and perhaps we should consider whether there is a better way of phrasing it.
When we begin to consider the meaning of section 2(8), some Senators may be tempted to wonder whether the obscurity of the meaning is intentional and deliberate. What exactly does section 2(8) mean? I think what the subsection means is this. If there is something in this Act which allows you to do something that you otherwise would not be allowed to do, then any agreement you make in which you try to give up that freedom is null and void. If my understanding of what it means is more or less on course, it applies with great relevance to section 23(2), a section Senator Hayes, the Labour Party and I want to strike from the Bill. I am using section 23(2) as an example of how it might be affected by this. Obviously I cannot discuss the particular section now, but it is necessary that I refer to it, and another later section, in order to understand section 2(8) which we are now discussing.
Section 23(1)(a) provides that copyright in works created in the course of an employment belongs to the employer, except where there is an agreement to the contrary. Section 23(2) makes an extraordinary exception to that. In brief terms, it gives a journalist working for a newspaper or periodical ownership of all rights in their work except newspaper or periodical publishing rights. In an important way, section 23(2) defeats section 23(1)(a). The question which arises immediately is whether section 23(2), in turn, is defeasible by agreement. In other words, could an employer agree a contract with the employee in which the employee agrees to cede his rights under section 23(2) as part of the conditions of his or her employment? The answer, because of the subsection we are now considering, is no. The thrust of this subsection is to make section 23(2) indefeasible. If an employee and the employer agree to waive section 23(2) rights, then the agreement is null and void. That is the import of this harmless looking subsection before us.
I came across this only because I was looking at the language. I could not understand it and was skipping over it. I then tried to understand what it meant and it was only then that I think I got the gist of it. Everything I say here is contingent on my correct understanding of that text. I may be wrong. I am not sure that much effort is being made to make clear the meaning of section 2(8). We can deal with section 23(2) when we get to it. I hope the Minister will see fit to think about this again because it is a very ill-judged provision. We must now consider this subsection in its own right. I hope I will be forgiven if I describe this as a sly provision. It is a subsection with considerable import, yet because of where it is placed in the Bill, and because of the way it is phrased, I believe that its importance is being masked, to put it mildly. I ask the Minister what is the scope of this subsection. In other words, to how many sections in the Bill is it relevant? I have pointed to section 23(2). I confess that I have not had the time to go through this vast Bill, line by line, as Senator Ryan has clearly done, to see where this subsection might apply. I stumbled on it because of my interest in section 23(2) to which Senator Hayes drew the attention of the House. Is this the only place where the subsection comes into play? If there are other sections, where are they? If there are not, and this applies only to section 23(2), my accusation of slyness gets another boost. Is it included solely to make sure it covers section 23(2)?
Let us consider the provision on its own merits, in isolation from any other section in which I am interested. What does this subsection do? It makes it impossible for an author to cede certain rights. Any agreement to do so would be null and void. Therefore, we are preventing an owner disposing of his property as he thinks fit. Given the provisions of our Constitution about property rights, that is a fairly major step. Put another way, we are marking certain rights down as inalienable. In other words, there are certain rights which are yours but you are not allowed to give them away. Is this what is being proposed in section 2(8)? You meet that concept in a lot of human rights legislation, and it is a very valuable concept. Society can declare certain rights inalienable so that powerless individuals are not put under pressure to sell things that society believes they should not sell. Clearly declaring an inalienable right is a major day's work. It is something to be done only with matters of great importance, otherwise we trivialise a very important concept in legislation.
It worries me that this subsection is creating a blank chequebook full of inalienable rights. We are doing this at the beginning of the Bill, which is where matters that have scope over several parts of the Bill are dealt with. It does not seem clear to me that copyright law is an area where we should be creating inalienable rights. However, if we do so, it should be on a case by case basis, with each creation carefully considered in the full light of day. To create a blank chequebook, as this subsection appears to do, is hardly the right way to go about such an important proceeding. We need a detailed explanation as to what is going on here, and why.
I refer to section 2(8) which appears to remove the right of an author to be able to give away his rights. I do not believe this is good law but there may be an explanation for it. I cannot believe that such an important law should be placed in page 29 under "Interpretations".
My interpretation is that an author who is covered under this Act could have his material banned under another Act. I do not know what the Minister's answer will be. I believe that under this Act the author would have certain rights to publish material, and to do whatever he or she wants with the material. However, under another Act, that work might be prohibited in this country for different reasons.
I thank Senator Quinn for drawing our attention to this issue. I believe this would affect section 293 regarding the waiver of paternity rights and section 296 where I am again looking for the possibility of integrity rights to be waived and to which I have tabled amendments. This could have a serious effect on the film business. If the section to which Senator Quinn has referred supersedes these sections, my amendments, if accepted, would mean nothing.
Before calling the Minister of State, I wish to acknowledge the presence of our newly elected MEP, Senator Avril Doyle, and wish her the best.
I congratulate Senator Avril Doyle on her success in the election.
With regard to the concerns raised by Senator Quinn and others, this section means that if somebody is entitled to an exception they cannot be subject to the terms of a contract. I accept Senator Quinn's point that it is important to have clarity in legislation. I will be happy to refer this section back to the parliamentary draftsman. The provision means they cannot contract out of the entitlement to an exception contained in the Bill.
Reference was made to section 23(2). I am aware of the interest of Members in that section and I am anxious to discuss it. It is an important issue which refers to journalists and their rightsvis-à-vis newspapers. That issue stands alone and should be treated as such. The section before us relates to users of copyright, not authors. It may include educational institutions, libraries or archives. It is a general provision. The Senator asked how it would affect other sections of the Bill. It would be relevant to any sections dealing with exceptions. In many ways, it is a matter of giving balance. The section stands alone and is distinct from section 23, which I am anxious to discuss later.
I will be happy to refer the provision to the parliamentary draftsman to see if the language can be improved.
I am glad the Minister of State will refer it back to the parliamentary draftsman, if only to make changes so that we are not embarrassed by newspapers reporting its difficult bureaucratic language.
The other point I raised, the content of the provision, worries me more. If it means what I think it means, it may have overriding importance, not only with regard to section 23 but it might override what we are trying to do in other sections of the Bill. I have not put down an amendment but I am expressing concern. I do not know how we can overcome this difficulty. If we do not find a solution before Report Stage, there might be an opportunity to reconsider it then.
I welcome the Minister of State's offer to refer the provision to the parliamentary draftsman, if only to make the language clearer.
It might be helpful to the discussion on the matter raised by Senator Quinn to outline a specific case in which I am involved. I write for a newspaper in Belfast. I am a freelance so I own the copyright. The newspaper asked me, and I agreed, to assign my copyright to the newspaper to the extent that it can use my articles on the Internet. Unless I do that, there is some doubt as to whether the newspaper can make them available on the Internet. I believe it would be retrograde if that were not possible.
I also wish to refer to subsection (7). Does the Minister of State regard the definitions of library and archive as too wide? What is a permanent collection? What constitutes a library or an archive? If I have a collection of books in my house, is that a library? If it is not a library, is it not protected? Is it worth considering the inclusion of additional definitions of the concepts of permanency and of a library? Could a library be defined as a library which is accessible to the public or is located in a vocational establishment, university or so forth?
The Senator is speaking from an author's perspective, that is, the owner of copyright. There is nothing to stop anybody in that position from assigning the ownership to somebody who wishes to publish the work. That is the owner's right and that applies to freelance journalists. This is a matter which will require a great deal of attention and I am anxious to hear Senators' views on section 23. This provision refers to users, not authors and that is a clear distinction.
Senator Hayes made two interesting points. One might be covered by section 23(2) which refers to work on behalf of a newspaper. The Senator's newspaper in Belfast asked him to assign his copyright because otherwise it would not be able to publish his work. He also referred to the definition of a library. That needs to be defined to describe it as a library of a public or institutional nature rather than a private collection.
I have assured the House that I will send this back to the parliamentary draftsman. In that context I will be happy to consider requirements for greater clarity. I accept the Senators' comments on this section.
I am still concerned. Can the Minister of State put my mind at rest with regard to subsection (8)? Am I correct in my interpretation that this could restrict an author from ceding the rights to his work? If that is so, it has many implications, particularly for Senator Henry's amendments. It overrides a great deal of what the Bill tries to do. I do not understand why it is included.
My concern is that there is a subtle reason for including it. Perhaps there was a deviousness in including it in the hope that it might not be noticed and commented on. I would not dare suggest that but it could be that the provision has implications we had not realised.
It will not put any restrictions on authors or first owners. This is about users.
If it is, should that not be indicated in the Bill? The sections about moral rights and the ability to waive them, on which I have tabled amendments, are of extraordinary practical importance. The film industry employs many people in this country. The sections which restrict the waiving of moral rights could mean that Ireland could lose out on a great number of big films, such as "Saving Private Ryan", being made here. We need to get clarity in the legislation. Other countries have a different concept of moral rights from ours. We should make clear what it is we are referring to in this section. I am grateful to Senator Quinn for picking up on this issue. It is essential that the section is redrafted to make it clear that it refers to the user.
Chapter 6 refers to acts permitted in relation to works protected by copyright. We are talking about users. To reply to Senator Henry and others and to satisfy the general thrust of this debate, we will try to get greater clarity if it is possible.
I am not clear on the purpose of section 6. I am not trying to trip up the Minister of State in raising this. What is it meant to do? Is it to give us a capacity to retaliate against broadcasters from outside the State who infringe copyright or against countries which do not regulate such broadcasters? The section states that it deals with the making and protection of broadcasts, but I am not clear on its purpose.
It is to determine who is to make the broadcasts. It is a lengthy section and I hope its language is clear.
Section 7(2) states:
Regulations made under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of this Act.
I do not like provisions such as this and that is why I intervene so often.
It is a blank cheque.
It is very close to acarte blanche or a blank cheque. It is a lot to which to ask us to agree. I understand the distinction between primary and secondary legislation, but this subsection essentially says that, if the Minister of State has forgotten anything in the legislation, he wants us to let him deal with it without having to return to the House. I do not like that.
This is a normal and regular provision allowing the Minister to make ministerial orders. I am sure Senators have seen it in other legislation. It has been agreed with the Attorney General's office and it is standard procedure as far as I am aware. I appreciate the Senator's point that he does not like it but, regardless of who is Minister, such provisions are regularly inserted in legislation.
I operate on the naive assumption that, if Members object to aspects of legislation, the parliamentary draftsman might listen and feel he was at least indirectly accountable to the Oireachtas. I appreciate there is a need for scope to make regulations, but this seems to me to claim the right to take actions which ought to be rati fied by the Oireachtas. One of the great conventions of the House is to say that we know the current Minister would not dream of abusing power but that a subsequent Minister might. I believe it to be true in this case. I know the Minister of State would not abuse power.
However, provisions of this type regularly end up in court because people try to use secondary legislation where it is necessary to enact primary legislation. The most recent example of this was the issue of the deportation of aliens. The courts stated firmly that the law cannot be rewritten and cannot be changed other than through the Houses of the Oireachtas. I invite any Department to say to the parliamentary draftsman that the Attorney General is a creature of precedent and will persist with certain procedures because he has got away with them in the past. Despite that the practice is not right.
Is this section in the 1963 or 1956 Acts? If so, how frequently has it been used in the past?
I thank Senator Ryan for his comments on his confidence in my ministry. I have seen this provision in legislation enacted under my other portfolio of labour affairs. There are occasions when a Minister must introduce regulations in the interest of the common good. I interpret this type of provision as allowing the Minister to do the right thing.
Has the provision been used in the past 40 to 50 years? If it has, in what manner was it used for the common good? It might not be possible for the Minister of State to tell me now.
My officials are relatively young so they are not aware of any such incidence, but we can obtain the information for the Senator.
I would be glad to know because it is interesting to know what flows from such a provision. As Senator Ryan said, it is a blank cheque and one would like to know its effects. Perhaps the Minister of State's officials could examine that for historical purposes.
The draftsmen chance their arm regularly and, sooner or later, they will get caught which will result in great difficulties for a great deal of legislation.
What applied to section 7 also applies to section 8. No regulations made under this Bill will need the prior approval of the Oireachtas. They are presumed to be approved unless annulled and are, therefore, deemed to be minor secondary legislation. I am not sure that is the case. There are areas of the legislation which are significant and for which there ought to be statutory instruments requiring the approval of both Houses. I believe someone in the parliamentary draftsman's office is chancing their arm.
I have made the objection I am about to make on previous occasions and I will continue make it in respect of every item of legislation that comes before the House. In my opinion it is unconstitutional to make one Minister subject to another. The idea that the Minister responsible for this legislation will require the permission of the Minister for Finance to spend money allocated by the Oireachtas is unconstitutional. There is no distinction of roles, there is a collective responsibility and the Minister for Finance has no authority to control the activities of another member of the Government. Only the Government can regulate the activities of an individual Minister.
In my view, granting responsibility for the approval of expenditure to the Minister for Finance is unconstitutional. It is also a nonsense because such approval will not be given by the Minister but by a junior official who knows less about this topic than me, the Minister or his officials. That person will deal with his duties either by immediately granting approval or by raising awkward objections on some trivial matter. Provisions of this nature which give the Minister for Finance overriding control are wrong and they should not be put in place.
I can only presume that Senator Ryan has made this point on previous occasions.
I hope someone is listening.
The Minister of State has already informed us that his officials are relatively young. It is stated in section 11 that we are going to override the provisions of section 10(4) of the Petty Sessions (Ireland) Act, 1851. I am interested in discovering the nature of those provisions because I would not like to override them without due care.
I understand they are standard provisions relating to this type of prosecution. Again, my officials are not in a position to provide details in respect of the Petty Sessions (Ireland) Act, 1851, but we will communicate with the Senator in that regard as soon as possible.
I would not like to believe that by use of the word "notwithstanding" we could override legislation which has been in operation for 148 years. I am genuinely concerned about this matter.
The Attorney General's office was deeply involved in assisting us in drafting this legislation and our dealings with the office operated on a fast track mechanism. I understand that this provision was suggested by the Attorney General's office and, given that there must be an element of trust between that office and my Department, we decided to include it in the legislation.
I am not that much older than the Minister of State's officials but I recall inquiring about the provisions of section 10(4) of the Act in question on a previous occasion and I recall that they are concerned with the payment of fines.
I thank Senator Henry for that information.
I know the Chair would prefer if I did not do so but I wish to place on record the degree to which I approve of this section. I hope it is used in the way it is intended because, in many instances, the agent, rather than the culpable person who is paid for being responsible, is charged with committing breaches of copyright. It ought to be made clear that a person with executive authority in an organisation who tolerates breaches of copyright will be held ultimately responsible and punished, not the unfortunate agent who breaks the law either foolishly or under some form of pressure. It is too often the case in this country that the messenger is blamed rather than the person responsible for the commission of a wrongdoing.
Amendments Nos. 2 and 3 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 33, subsection 1(c), line 4, after "prepaid" to insert "registered".
This amendment proposes the insertion of the word "registered" after "prepaid" in section 14(1)(c). I believe a drafting error was made in this instance and I presume the Minister will have no difficulty accepting the amendment. The Education (Welfare) Bill, with which we dealt yesterday, included an almost identical provision with the exception that the term "registered" was used. Perhaps the Minister of State could consult the text of that Bill to confirm what I am saying. It appears that the matters dealt with in both Bills are of equal importance and I see no possible reason for any difference in treatment.
The House has a responsibility to be consistent in terms of the legislation it passes. Therefore, if we passed a Bill yesterday stating that registered proof was required then the same stipulation should apply today. It goes against the grain that we should deal with the same issue in different ways on consecutive days. The point about registered post is that a person obtains proof of posting. If a notice is successfully delivered, that is proof of receipt.
I am not sure that it would not be better to insist that notices be served in a formal manner. The provisions of this section seem somewhat casual, particularly in terms of possible legal proceedings, and precedents and problems may be created in the future because of the lack of what might be termed an "audit trail". I hesitate to propose that notices be served formally in case people in An Post form the impression that I am deserting a company with which I used to be involved. Therefore, I suggest that the word "registered" be inserted because it was used in the Education (Welfare) Bill and if it was acceptable on 16 June it should also be acceptable on 17 June.
With regard to amendment No. 3, it is extraordinary that a Bill which is designed to be forward looking and technologically neutral makes no reference to the possibility of using electronic means to transmit notices. I do not believe electronic mail is sufficiently developed in order for it to offer an acceptable alternative. Electronic mail is not as secure as ordinary post. However, at a time when we are dealing with Internet commerce, difficulties involving electronic signatures, etc., we ought to make provision in the Bill that the Minister will be able to prescribe in the future that notices of this kind and those relating to other areas can be transmitted, under whatever conditions he or she wishes to set down, by electronic means. Amend ment No. 3 is designed to leave room to adapt to the enormous changes which will take place in respect of the transmission of information in the next five to ten years.
I thank the Senators for the suggestions outlined in their amendments, both of which relate to the methods of service of notices under the legislation. With regard to amendment No. 2, I am advised that in the service of summonses circumstances may arise where the service of the notice in question by ordinary prepaid post rather than by registered post may be appropriate. In other words, there is not always a need to send notices by registered post. If I accepted the amendment we would be setting a higher standard than that required in respect of court summonses. Therefore, I do not believe it would be appropriate to eliminate the option of using ordinary prepaid post or to set a higher overall standard for the service of notices under this legislation than that which applies to summonses. Amendment No. 3 is interesting but it would suggest a major departure in terms of procedure for the service of instruments such as notices and summonses. This is a matter for consideration on account of the development of procedures. It is an interesting proposal but it is primarily a matter for my colleague, the Minister for Justice, Equality and Law Reform. I would be glad if he examined it but not in the context of this Bill. These are two technical issues.
The House dealt with a Bill yesterday which referred to the contentious issue of truancy. In that case we talked about registered mail. I would have thought that copyright issues were as important as truancy but the Bill provides that notices can be sent by prepaid mail. I do not understand the nuance of the differences between yesterday and today. Will the Minister of State reconsider his reply? I cannot understand why truancy is more important than copyright in legal terms.
We talked earlier about legislation dating back to 1851 and 148 years is a long lifespan for legislation. I hope this Bill will last that long. Perhaps the post offices as we know them will be extinct in less than 148 years and all communications will be carried out by other means within a shorter time span. I support Senator Ryan's amendment in that context and because it does not force the issue. The words used are "as the Minister may decide". It may give the Minister the freedom to take action at some point in the future. The amendments are sensible but the Minister of State has not given a reason for not accepting them in principle.
With regard to this Bill and the Education (Welfare) Bill, 1999, discussed here yesterday, I would be happy to ask my officials to check this Bill and examine the Official Report to see if there is a way in which this provision can be aligned with the truancy legislation. In the context of what Senators have said, I wish to point out that I have been advised to keep our options open. That is my position on the issue but I am happy to examine the other legislation to see if anything can be done. I accept that Senators want surety and clarity.
With regard to Senator Quinn's second comment, I am happy to convey his views to my colleague, the Minister for Justice, Equality and Law Reform. This issue needs to be addressed. Senator Ryan's amendment would provide for sending notices "by such other methods (including electronic methods) as the Minister may decide". In order to have action taken on this matter it would be necessary for the Minister for Justice, Equality and Law Reform to deal with it. The way would then be clear for Ministers and Ministers of State to take Senators' views into account. I assure Members I will convey their views to the Minister for Justice, Equality and Law Reform. I hope he will respond to them. The method of sending out notices is his area of responsibility.
Will the Minister of State do his best to convey our views to the Minister for Justice, Equality and Law Reform before Report Stage?
I am not optimistic that the Department of Justice, Equality and Law Reform is forward thinking. Nevertheless, I accept the bona fides of the Minister of State.
It is extraordinary that Ireland, as one of the largest software and information technology hardware exporters in the world, a country aspiring to be at the cutting edge of Internet commerce, is still thinking in terms of communication methods invented 200 years ago when conducting business.
I am not keen to see the end of the post offices. Senator Quinn was being apocalyptic in his remarks. However, I have no doubt that citizens will have an e-mail address to receive considerable amounts of information critical to their lives within ten years. Every communication with the tax office, social welfare services, etc. will be carried out using technology. I am not convinced that newspapers will become extinct because it is more pleasurable to read an actual newspaper than to view the same information on a television screen.
There will be a considerable amount of such communication. We must get an assurance that electronic communications will be delivered in a reliable and secure manner. These aspects have not been addressed. Once we do that there is no reason we should not use the available technology for communications currently being made using methods invented almost 200 years ago.
I accept the Minister of State's point that electronic communications is a wider issue than its context in this Bill. When this issue comes up again I expect to hear the same statement. Bills are never introduced in the House in the appropriate form because the importance of the electronic communications issue seems to increase with every Bill and we end up dealing with antiquated methods of communication. This legislation will be antiquated in less than ten years. I am happy with the Minister of State's assurance.
I move amendment No. 4:
In page 34, subsection (5), line 18, after "another" to insert "pre-existing".
Time is of the essence and we need to spell out this issue. If the Minister writes a book and I take him to court saying that his book infringes the copyright of my book, the only leg I have to stand on is that my book was written before his. If it was not he could take a case against me. Decisions about ownership on copyright are made on the basis of who registered it first. Time is how we measure the ownership of copyright. If I register copyright first then I have it; if the Minister registers first then he has it. If anyone registers after me then their claim to copyright infringes on my rights.
I cannot see how we can capture the basic concept without proving that something pre-exists. I think the section makes sense. Copyright shall not exist in a work which infringes or to the extent that it infringes the copyright in another pre-existing work. I hope the Minister of State understands my viewpoint and accepts my amendment.
I appreciate the Senator's concern about this issue. It is obviously a matter of the interpretation of the word "another". To put it another way, if it does not pre-exist, it is not another work.
The suggested amendment would not improve the text. I appreciate the Senator's intention to improve interpretation but the term "another work" implies that the other work in question pre-exists. The term "another work" is legally strong enough and watertight, and I ask the Senator to consider that.
It is precisely what the Minister said in that it implies. I was trying to improve the text to ensure there was not a row afterwards. If there was a row as to whether the Minister's work or mine had the copyright and it turned out the Minister's was done before mine, he would win it because his work pre-existed mine. It would improve the text if there was no doubt about it. I believe the word "pre-existing" helps but if the Minister does not, I will bow to his advice. It takes away this implication, is clear cut and is quite concise. If one work pre-exists another, it has the copyright. I do not have strong views on it but I thought it would strengthen and benefit the Bill.
The term "another work" necessarily implies that the work pre-exists another. In the context of the Senator's contribution and after discussions with my officials, if I believe the Senator's wording strengthens the provision and brings about what the Senator and I wish, I will be more than happy to consider it. We both want precision and clarity, but as of now I believe the wording is strong enough. However, I will be happy to examine it between now and Report Stage.
I am genuinely concerned about the way in which this section is structured. Section 17(2) states: "Copyright subsists in accordance with this Act, in – (a) original literary, dramatic, musical or artistic works,". That is where the term "artistic works" is used in relation to copyright. I go back to my concern about the definition of artistic works. Although the definition of a work is broader later on, the definition of artistic work is quite traditional. Although the term "works" applies later, it does not get away from the fact that the critical subsection of section 17 is that copyright subsists in artistic works.
The definition of artistic works contained in section 2 is inadequate to cover multimedia or, indeed, laser based art. Photographs, paintings, diagrams, maps, charts, plans, engraving, etchings, collages and sculpture are mentioned. I have a good friend, Vivienne Roche, who is developing a work of art to decorate the new tunnel in Cork and she will use laser beams as part of that. That is an original artistic work, the copyright of which she is entitled to have protected. I use that as an example. I am unhappy that the present definition of artistic work does not extend to that type of work any more than it does to works of art put together using computer graphics. I am concerned about computer graphics and the way they are used in film making, etc. Some artistic works are not covered by this definition. Because they are not covered, the concept is less than adequately protected. I am prepared to listen very carefully to the Minister's response.
I support Senator Ryan's views. This phrase is used again here and it is obvious that we need to look at it much more closely than in the original interpretation. The Minister should expand that phrase to include the new technologies which, as Senator Ryan described, are used as art forms.
We are going back to the question of artistic works. Artistic works in the sense of this definition refers to the end product. That is what we are dealing with when we talk about artistic works.
Laser beams are used in artistic works. I have seen wonderful laser based works of art both in Ireland and abroad. Laser beams are not photographs, paintings, drawings or diagrams; they are something new and different. I do not want to be argumentative about it. Will the Minister undertake to look at this again? It is extremely important, and the Minister agrees with me. I know it is the Minister's wish to have this legislation as technologically neutral as possible but I do not want it technologically neutered either. A new set of media are being developed by artists and they are inadequately described here.
If the Senator looks at the list, he will see it is not exhaustive in that it includes a work of any of the following descriptions. As with anything that has been suggested, I am happy to re-examine these issues, including the points made. I am satisfied we have fulfilled our obligations. The section states: "includes a work of any of the following descriptions" and refers to photographs, paintings, drawings, collages and sculptures, and the Senator mentioned laser beams. I assure him we will take note of the point he and Senator Henry made. If I can add anything to this at a later stage, I will.
I hope the Minister will look at this matter again because from what he said and what is written in the Bill, these are all tangible, but artistic efforts using laser beams may not be. It is important the Minister looks at this matter again.
I do not accept the use of the word "includes" is sufficient. We could argue forever about this matter. If the Oireachtas makes a definition regarding, as Senator Henry said, all things which are tangible, then forms of works of art which are intangible are not covered. I know it is an exercise in ingenuity, but it is extremely important. We could run into huge problems with people copying works of art which are generated using modern forms of technology. There is more to it than the Minister seems to appreciate. This is a serious concern which deserves to be addressed with some thoroughness. There is a deficiency and most objective observers would accept that.
The Senator may have a point. We will be glad to examine it because we are relying on technical advice in many cases. In order to qualify for copyright protection, a work must be fixed, as Senators will be aware. There is no doubt that in years to come there may be a need to look at the issues raised. I assure the Senator we will examine this thoroughly.
If the concept of its being fixed is used to exclude the ways in which modern technology is used, we had better get a new definition of "fixed". Many people in the artistic community will be profoundly unhappy that their works which use modern new technology will not be covered, not just through the absence of a definition but because of a concept of "fixed" which is out of date. There are words and terms I will not use, including "Celtic tiger", "millennium" and "cyberspace", but virtual reality, etc., exists and we should think further about the matter. I hope the Minister will return to it with an open mind.
I again thank Senators for their comments. I do not think it is a question of a new definition of "fixed". Rather I think this will have to be dealt with in the future in the context of a different sort of right. The points made are valid and we will re-examine this entire area.
These things are intangible and what we have to think of is the process and technique used in terms of giving protection to the artist.
As the Minister and Members are aware, RTE has various concerns regarding certain provisions in the Bill as currently drafted. This is one of the reasons I suggested this morning that we make whatever progress we can today and then adjourn the debate until the Minister is ready, following consultation with the Attorney General, to bring forward Government amendments. I am sure this is one of the sections about which the Minister is concerned.
RTE believes that the section, as currently drafted, could have the effect of hindering the activities of programme making and broadcasting in Ireland. It is extremely concerned that the Bill provides record producers with exclusive rights to the broadcasting of sound recordings. RTE acknowledges that record producers should be entitled to be remunerated, but to provide them, as the Bill does, with exclusive rights means they have the absolute right to grant or withhold consent over the use or broadcast of sound recordings, even where those recordings form an integrated part of a television production. RTE further states that in the UK, following an inquiry by the Monopolies and Mergers Commission, it was found that it would be unfair to grant record producers such absolute rights in the absence of some form of statutory licensing scheme. Such a scheme was introduced in the UK in 1990. The introduction of an exclusive right without any accompanying provision for a licensing arrangement is an extreme step which will have adverse consequences for broadcasters. I would appreciate a comment by the Minister in this regard.
Regarding the Senator's broader point on how we proceed from here, I would be very happy to proceed as we are currently doing. There are people present who have made contributions on each stage of the Bill. This is my first time to come to the Seanad with legislation and I find it a very workable and helpful way of dealing with the various issues. Earlier I suggested that we would return to the Seanad the week after next, and I will certainly try to introduce whatever amendments are necessary. However, it may not be necessary to introduce many as much of the work has been done. However, I will endeavour to tighten any loose ends through amendments.
Regarding sound recordings, I appreciate there may be issues later in the Bill concerning rights in favour of broadcasting. My understanding is that the provision here underpins copyright in a sound recording as it provides that copyright "shall not subsist in a sound recording until the first fixation of the sound recording is made". This is a very straightforward underpinning of the position in relation to copyright and we are happy that it is correct and in order. I do not think any outside interests have anything to fear on this issue, but issues may arise in later sections in relation to the rights in favour of broadcasting which we will need to address.
I take it the Minister is undertaking to examine the matter before Report Stage.
I am a little confused by this section, although the chances are that this is my fault. The section states: "Copyright shall not subsist in a cable programme that is included in a cable programme service by reception and immediate retransmission, without alteration, either of a cable programme or a broadcast." Am I correct in saying that if Cablelink or Irish Multichannel delayed retransmission by ten minutes they would have some copyright claims over the material they were broadcasting?
Another question arises concerning the phrase "without alteration". Much to my annoyance and in an appalling abuse of monopoly, Irish Multichannel in Cork decided it would convert all television sound to mono, even though it is received in stereo. In this case it has altered every television programme supplied on cable services. Does this give Irish Multichannel some copyright claims it otherwise would not have by virtue of degrading other people's work? The issue of integrity rights arises later in the Bill and I hope to pursue it with the Minister. Does the change in sound from stereo to mono, which affects the quality of production, mean that it has copyright claims it would not otherwise have?
If a cable service legitimately carries a broadcast, copyright in the programme persists. This section clarifies that no secondary copyright exists.
I understand the intent of the section but my concern is that what is intended will not happen. The section says "Copyright shall not subsist in a cable programme that is included in a cable programme service by reception and immediate retransmission". If we include this in the legislation, is it not the clear implication that if these circumstances do not prevail, copyright shall subsist?
Another issue arises in terms of the phrase "without alteration". What would be the situation as regards copyright if there was alteration? Would cable companies have some copyright claims or could they use those claims to, in turn, make claims on people with televisions in, for example, pubs? If they alter the programme, could they claim to have some right to further licensing because they have a copyright claim in addition to the copyright claim of the people who made the programme? I am particularly thinking about Irish Multichannel in Cork which alters sound from stereo to mono.
My advice is that the provision deals with direct transmission which would be continuous. The Senator has raised an important point in the context of transmission not being direct or having a break. I assure him that we will re-examine the matter.
I move amendment No. 5:
In page 35, subsection (2), line 21 after "director" to insert "and the author of the screenplay of the film and the author of the dialogue of the film and the author of music specially composed for use in the film".
I tabled this amendment not because I want it to be inserted in the Bill. I do not intend to be obstructive. I want to draw attention to an apparently fundamental inconsistency between this subsection and section 25(1). These subsections are not from the same hymn book. As far as I can see, they are saying not only two different but almost two contrasting things.
What is at issue here is who is the author of the film. In section 22(2) the implication seems clear that the authorship of the film belongs to both the producer and the principal director only. If they are one and the same person, then we are talking about sole ownership by that person. That seems quite clear. At first I was a little surprised at this and then I assumed it meant that copyright of the film itself is one thing and copyright of the screenplay, the dialogue and specially composed music would be separate matters.
That was my assumption until I came to section 25(1), which defines the duration of copyright protection in films. One must note that section 25(1) refers to the copyright in the film, not the copyright in the screenplay, the dialogue or the music. However, the duration of the copyright protection is defined in terms of the duration of the lives of four people: the principal director, the author of the screenplay, the author of the dialogue and the author of music specially composed for that film.
The provision that the film's copyright applies until the last of those four people is 70 years dead is peculiar from two perspectives. On the one hand, the poor producer, who in fact may not be poor, has been left out. Only three sections previously, in section 22, we puffed up the producer as the joint author of the film in tandem only with the principal director. They are the guys who own the film's copyright. However, between section 22(2) and section 25(1) the producer has not only been demoted but has disappeared altogether. The Minister has, in the great tradition of soap operas, written him out of the script between sections 22(2) and 25(1). Whoops, he is gone. It is a lovely way to do it. It seems that the length of his life is not material in determining the duration of the copyright protection. On the other hand, what are we to make of the sudden unannounced arrival of the other trio on the scene, the authors of the screenplay, the dialogue and the music? Since section 22 does not refer to them the implication is that, irrespective of the rights they own, they do not own part of the copyright of the film. I am sure it is a mistake because, in determining the duration of the copyright protection of the film, how long these three musketeers live will be the determining factor.
This is a mess. It reeks of ambiguity. It seems that something has gone wrong between sections 22 and 25. I do not know that it is easily explained other than that these three have been left out and I am not sure what is the ideal solution.
Who is the owner of the copyright of the film? Section 22 implies one thing and section 25 implies something quite different. I can see many senior counsels making their fortune from the conflict between those two sections. On the face of it, it seems ridiculous to use the length of the life of someone who does not have an interest in the property concerned to measure the duration of copyright protection. Why use these people and not the studio doorman? If no ownership is involved, that would make just as much sense. If ownership is involved, then surely section 22 is a nonsense.
It is simply wrong to state that the joint owners of the film's copyright are the producer and the principal director. It needs to be made clear who owns what. There seems to be ambiguity between sections 22 and 25. In order to make sure we avoid all those wealthy lawyers becoming even wealthier in the future, I suggest the Minister clear up the matter. The place to clear it up is at section 22(2) rather than waiting until we reach section 25, but I would be happy to hear the Minister's views on it.
I thank Senator Quinn for his comments. This relates to the work of joint authorship. On a practical point, it appears most unlikely that all of the persons named in the amended version of the subsection would ever be one and the same person.
These two sections are in place for different purposes. In this case we are dealing with the works of joint authorship. In the other case to which the Senator refers, section 25, the Bill, as he rightly stated, deals with measuring the lives for the duration of copyright.
I am not in a position to accept the Senator's amendment but I will consider the matter further in the light of his comments. Perhaps it can be dealt with some other way in the Bill. It is unlikely that all the roles to which the amendment refers would ever be filled by one and the same person. The producer and the principal director are obviously the main players here.
I would welcome the Minister's answer on this. I am not looking for it now and, as I said, I did not expect that the Minister would accept my amendment. It is an anomaly and sections 22 and 25 cannot remain as they are. We must find a solution for it and I hope the Minister will do so between now and Report Stage. If the Bill was weakened by such an ambiguity as exists between sections 22(2) and 25(1), it would not deserve all the attention the Minister has given it and all the credit it is receiving.
The sections have different purposes. In section 25, we are obviously complying with EU legislation. I will consider the matter further in the light of the Senator's comments.
I move amendment No. 6:
In page 35, lines 41 to 45, to delete subsection (2).
I have a couple of interests to declare. I am a director of Independent Newspapers and I am also an author. When those two interests are in conflict, as is frequently the case, the enlightened self-interest of the author generally prevails. I do not have a specific interest in the clause. As a freelance writer, I retain the copyright for my own work except where I am asked to allow a newspaper to publish my work on the Internet.
Section 23(1) is fine. The problem arises with section 23(2) which seems to depart slightly from the generally accepted law and practice on intellectual property in so far as what is created in an employer's time and using an employer's equipment and facilities remains the property of the employer. Since that is the case in regard to every other form of creative activity under the Bill, it seems strange to make an exception in regard to the print media.
Like many Senators, I have received representations from the National Newspapers of Ireland on this issue. The association points out that newspapers are businesses and that this provision would effectively enable an employee to compete with his or her employer in another medium, using material prepared and created in the employer's time and using the employer's facilities. That seems to be somewhat anomalous.
Newspaper editors sometimes have difficulty deciding what to publish. If a journalist working for a newspaper submits an article which for very good reasons, such as libel considerations, is not printed and the journalist transmits the material in another medium, there is a real danger that the employer, in whose time the material was created and whose facilities and equipment were used in its creation, might be subject to a libel action or may be considered to be vicariously involved in some way.
Communications are changing with great speed and new media are being introduced at a rapid pace, some of which interact with existing media. Throughout the world, there is a convergence of different forms of communications and media. I am concerned that in two or three years' time this subsection might not only be confusing, but might seem slightly ridiculous in not taking account of the state of the communications industry. Perhaps the Minister of State would consider simplifying the section by excluding subsection (2).
We referred to this issue at length on Second Stage on 6 May. Copyright is obviously very important to all media owners. Section 23(2) is a source of grave concern to Irish newspapers permitting, as it does, employed journalists to resell their work to other sources. As I understand it, the NUJ is in agreement with Irish newspapers on this point. Employees in every other industry in Ireland have no rights whatsoever over work created while in employment. In all cases, copyright is vested in the employer, as Senator Maurice Hayes pointed out. It seems wholly unfair and discriminatory, therefore, that newspaper providers should be singled out in this manner. It would set an extremely bad precedent to make this exception in the Bill.
The Irish newspaper market is wide open. Thousands of imported newspapers on sale here on a daily basis compete directly with Irish newspapers. The copyright for the vast majority of these imported titles is vested, without qualification, in the employers. We should not discriminate against our indigenous media in this marketplace. To do so would be to tie the hands of Irish newspapers.
In order to place newspapers in the same position as other employers of in-house journalists, such as television and radio stations, I willingly join with Senator Maurice Hayes in tabling this amendment. This is probably the strongest point I will make on Committee Stage. Failure to delete this section could lead to employed journalists undermining their employers in the marketplace.
If, for example, an employed journalist is sent abroad to cover an international event for his or her newspaper, travelling expenses, salaries and other entitlements are paid for by the newspaper. As it stands, section 23(2) would give that journalist the right to sell his or her material to any number of services, other than newspapers or periodicals. The journalist could sell the piece to a television or radio station which could then broadcast the material or publish it on a website, thereby directly competing with the newspaper, which, incidentally, will have its own website, which paid for the journalist to gather the material in the first instance. It would seem to be unfair to legislate to allow this to occur because it could penalise our indigenous newspapers.
As legislators, we must ensure there is a competitive and level playing pitch. Therefore, the only possible solution is the deletion of section 23(2). Senator Maurice Hayes is right that material created in an employer's time is allowable in all other cases but this one. It would be very bad to make an exception of the print media. The Senator also made an excellent point regarding alternative uses of material. If another media source was to use material which a journalist's newspaper refused to publish, for libel considerations or otherwise, then I believe the newspaper would be affected by any subsequent libel action. The Senator also spoke about the changing nature of communications which, I humbly suggest, will quickly render this section archaic. I am very concerned about this subsection and I urge the Minster to favourably consider its deletion.
This is an extraordinary provision. It is no wonder the media moguls are up in arms about it. Section 23(2) defeats the thrust of section 23(1) in respect of one class of employers and employees, namely, journalists employed by newspapers and periodicals. Section 23(1) provides for the standard regime for those who create copyright material during the course of their daily work. The long-established general rule in many countries is that the employer owns the copyright. The possibility of amending this rule by agreement between employer and employees is, however, provided for. It could, for example, be made a condition of an employment contract that an employee possess certain rights. This is normal in many occupations, including the broadcast media – radio and television.
Many employees, including employees of my company, create copyright material during the course of their daily work. This would include creative work such as the writing and designing of advertisements, the making of television commercials and the production of promotion and corporate literature. There could be negotiations between employer and employee as to who owns it. Copyright material is also created in more mundane activities, for example, the small print of an insurance policy or business correspondence.
Across the spectrum, the same simple principle applies – the employer owns the copyright. This is understandable. It would be impossible to run a business if copyright material created by an employee belonged to that employee, rather than the employer, unless this is negotiated in advance. It is right, therefore, that the legislation should provide for the presumption that the employer owns the copyright and for the possibility of exceptions to this rule, which occur regularly.
I find the Bill's provisions amazing, not because they invade the property rights of a class of Irish employers in a way that will put them at a competitive disadvantage or because they create the possibility of an employee working against the interests of his or her employer under the protective umbrella of this legislation, but because they give this sweeping right to one class of employees only, namely, journalists in newspapers and periodicals.
When one provides for exceptions in legislation, one does so for a particular reason. In natural justice, one cannot arbitrarily select a class of employees to whom an exception will apply and say "hard luck" to everybody else. One must justify the exception. Let me give an example. It would be against the principles of natural justice to pass a law that everybody must pay income tax, except those whose name is Feargal Quinn. The chances of such a law being applied are slim; it would be arbitrary and unacceptable in a democracy.
The subsection under discussion is just as arbitrary and for that reason alone, it is unacceptable. It will apply to journalists in newspapers and periodicals only. How can it be justified? I can only assume that there was special pleading. Surely the journalists' lobby would have been looking for this extraordinary privilege to apply to all journalists? Are journalists in the electronic media aware that their counterparts in newspapers and periodicals are about to acquire a benefit of enormous proportions?
I have never seen myself as a spokesperson for employers and I do not intend to put myself in that position now, but in everything we do in this House, whether in the making of laws or the application of Government policy, we should take great care so as not to put Irish companies at a competitive disadvantage. Laws have been passed which apply to indigenous companies only and not to their competitors based in Britain. Is it true that journalists in the electronic media agreed that an exception should be made for their counterparts in the newspapers and periodicals? I cannot believe that. Did this provision happen by accident?
In the interests of good legislation, I make the case on behalf of indigenous companies competing in a competitive marketplace with competitors based abroad. If this Bill places Irish companies at a competitive disadvantage in the domestic market, it is bad law. Such an exception is not provided for in the law of any country with which we compete. The Minister of State will correct me if I am wrong. However, even if he points out that there are similar laws in other jurisdictions, that does not mean that this legislation is right. If there is an explanation for this which I do not understand, that surely places a greater burden of proof on the promoters of this section to justify making this exception. Senators Hayes and Coghlan made similar cases. This is an incredible section which cannot stand up to scrutiny. The Bill is severely damaged by this outrageous inequality and would be healthier and more correct if the Minister of State deleted this section.
I am not sure how outrageous this section is. Perhaps we should include those in the electronic media in this section if we are going to retain it. I am more worried about the suppression of information than the problems of publishing industry moguls. Has the Minister of State included this provision for such a reason?
We in Ireland rely greatly on our own journalists bringing matters to our attention. I understand the grave problems faced by Irish newspapers due to competition from the UK, and I am dutifully sympathetic and always buy Irish newspapers – there is plenty to read in them. However, I am concerned that a considerable section of our media is already directly controlled by non-Irish individuals. I am also concerned about those who might wish to restrict the dissemination of more information than I would like and which is of benefit to the public. We must be careful. This section gives special privileges to journalists; for our own good, we need them to have special privileges. However, we should be cautious about doing anything which would suppress the possibility of information being disseminated.
There are often occasions when newspaper proprietors do not want certain facts disseminated. Many newspapers are not stand-alone publications.The Irish Times may be one of the only stand-alone newspapers, as most publishing houses seem to have an enormous number of other interests. We should be careful about this and I look forward to hearing the Minister of State's comments.
I too look forward to the Minister of State's comments. I am a little ambivalent about this section. However, like half the Members, I have an interest in this issue as I regularly write for a national newspaper with one of the smallest circulations. I am not an employee of the newspaper so the section does not apply to me. Until I read this section, I thought copyright rested with the newspaper rather than the journalist. I think the newspaper still believes that to be the case, so I am intrigued.
There is an anomaly in this section as I do not understand why it should only apply to newspaper journalists. To that degree I have sympathy with the case put forward by Irish national newspapers. It is possible to draft this section in a manner which defends the prior right of all forms of media to the first broadcast of any work carried out by an employee. I share Senator Henry's concern that media ownership is increasingly concentrated in a small number of hands. This is particularly the case in the UK where one owner has a clear political agenda, and I am concerned that there could be a systematic suppression of investigative journalism. However, this does not deal with the anomalous situation that this section only refers to newspapers. I am concerned that the ownership of copyright of literary work by journalists would rest with the employers who could use it to suppress material.
To some degree the newspaper industry is trying to have it both ways. On the one hand, it wants the Bill to categorically assert that the employer is the first owner of any copyright on any work created by an employee in the course of their employment. That is fine. However, while the employer becomes the first owner of the copyright, employers are happy to use the lifespan of the person who produced the material, and who does not own it, as the timescale within which the material remains in copyright. If the employer is the owner, then the timescale before which copyright lapses ought to be based on the time at which the material comes into the ownership of the employer rather than on the lifespan of someone who has no legal right to the material. Employers cannot have it both ways.
If a 25 year old journalist writes material forThe Irish Times, for example, that material remains the copyright of The Irish Times and, if we remove this section, there are no exceptions. One cannot then say that copyright remains with The Irish Times for 70 years after the death of that journalist, which may be 125 years after the material was written. If employers own the copyright then the clock should start ticking from the moment they assume ownership of the material.
I am not happy to simply remove this section. There is a case for guaranteeing that employers have first call on the work of their employees. Where material is published and there is no question of integrity rights being broken, there is a case for granting further rights to employers. However, I am not happy with the idea that work created by journalists or creative people in any section of the media could be suppressed indefinitely by owners, for whatever reason, in the name of copyright. We are not in the business of using copyright law to suppress the dissemination of information.
I thank all who contributed to this debate. This is an important section. We have read much about lobbies in recent times and the Minister for Enterprise, Trade and Employment, Deputy Harney, and I were lobbied on this matter by the newspaper industry and, to a lesser extent, by journalists' interests. This is a classic example of a situation in which the Minister has to do the right thing. I will argue that I am doing the right thing based on listening to the views of both sides and trying to come up with fair and balanced legislation.
I appreciate the comments of Senators who offered different perspectives. I have a particular view of the newspaper industry but there is another view about journalists, their creative talents and their rights to limited use, as provided for in section 23(2). I am faced with clear choices. The 1963 legislation gives strong rights to journalists. In bringing forward this subsection, I have restricted these rights. I have put a lot of time and energy into this by meeting with the newspaper industry and others, as have my officials. I reject any implication that I was not being reasonable and I assure Senators that serious choices have been made. Other countries have also adopted this approach. I made the point that under the 1963 Act journalists had particular rights. Newspapers owned copyright of such work only to the extent that it applied to its inclusion in a newspaper. The other share of the right, so to speak, of the copyright belonged to the journalist employee.
During the course of consultations leading to the publication of the Bill, the approach adopted of producing a draft Bill and listening to people's views led us to introduce this amendment. Strong consideration was given to the representations of the National Newspapers of Ireland and it was concluded that there was no justification in maintaining the split copyright between newspaper and journalist, which applies in no other field of employment. However, in assigning the full copyright interest to the newspaper employer, we consider 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 journalist employees. This has been done in other jurisdictions in reforming copyright legislation based, as our legislation is, on the UK Copyright Act, 1956. An example is the Hong Kong Copyright Ordnance, 1997, which 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.
I am not sure whether Fintan O'Toole is an employee or a freelance journalist. Let us say for argument's sake, he is an employee ofThe Irish Times and wanted to produce articles from the newspaper in book form. In doing so, if I were not to include this provision, the works would belong to the newspaper without any right of use for that individual. That is the reality. The inclusion of this provision will give restricted rights to creative people, who are employees, to do certain things with their works. The newspaper has the ownership of copyright, as in other cases. I will come to the main argument in a moment as to why we should make a special case for journalists. However, I must point out that I am talking about employees and I gave the hypothetical example of Fintan O'Toole. If the individual is a freelance journalist, he or she would enter into contractual arrangements and, therefore, their rights would be different. We are talking here about employees.
The provision proposed in the 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. It conveys in particular the full copyright interest to the employer newspaper, thus allowing the employed journalist to retain no more than a restricted right to use such works which exclude their inclusion in newspapers. 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. I believe I have found the right balance. The point has been well made that the rights should be the same for newspapers as for all other companies. However, I would argue that there is a traditional right here. In trying to get the balance right, I have restricted the rights of the journalists in question. I have given an example of a journalist who might be an employee and might wish to put newspaper articles into book form. That person has rights and that this provision gives that person some protection.
I have made some of these points already on Second Stage. Journalists employed by newspapers have traditionally enjoyed a copyright interest in their works except in relation to the use of these works in the newspaper. I have examined the matter carefully and recognised the position of the newspapers. Section 23(1) reads, "The author of a work shall be the first owner of the copyright . . . ". The newspapers' position has been strengthened by this provision as compared to the 1963 legislation. The Bill will remove this retained copyright to the considerable benefit of the newspapers. Subsection (2), which imparts no more than a limited right of use to journalist employees outside the newspaper context, appears to me to represent a reasonable compromise between the interests of the journalists concerned and that of their employers, bearing in mind the historical background of this provision.
My mind is not closed to further submissions on the matter. I have listened to all arguments to date and when I came here this morning I made the point that I did not have a closed mind. I would be in a position to accept an amendment at this stage. I have thought long and hard about where the rights should prevail and I recognise the views of the newspaper industry. Equally, journalists have had a traditional right and in the context of the example I gave, it is only fair and just to give them limited rights of use of their works. This is not a major shift from one position to another. If anything, the newspapers' position has been strengthened by this provision as compared to the draft legislation.
I believe what I have done is fair, reasonable and balanced and that the newspapers' position has been strengthened as employers, but we have retained some limited use for those journalists who are employees, as distinct from freelance journalists, in various newspapers.
I understand why the Minister says he has struck a balance because he believes in traditional rights. I do not accept this because I understand that the newspapers and the NUJ aread idem on this. Given the competition that exists – I am not railing against competition – and that foreign media in this country have copyright vested without qualification in the employer and the NUJ's agreement, it is totally anomalous to make this exception in the case of the print media when it does not exist for other media. I favour the deletion of this subsection. I appreciate that the Minister of State is prepared to look at this again and come back to the matter on Report Stage. Can an amendment be tabled on Report Stage?
I did not understand the historical background until the Minister of State explained it but that does not make it right. I had my tongue in cheek when I said I did not believe this applied in any other country aside from, perhaps, Pakistan. I was wrong; the country was Hong Kong. My apologies. I was not too far out, although Hong Kong is farther away than Pakistan. I do not know how many Hong Kong or Pakistani newspapers sell in Ireland and threaten the Irish newspaper industry.
The Minister of State's view is acceptable as long as he applies this condition to Conrad Black and Rupert Murdoch as well. If he tells me he can get agreement from their newspapers, which sell in Ireland in competition with Irish newspapers, I will have some sympathy. I have a strong view on this issue. These Houses have passed laws which we believe apply in Ireland. However, they do not. They only apply to Irish businesses based in Ireland. I am thinking of the business in which I am involved. The Oireachtas has passed laws for the grocery sector which prevent people from doing a number of things. However, the law does not apply to companies which are based outside Ireland but which operate here.
In the long term Irish companies have huge difficulty surviving in a competitive market when the Oireachtas passes laws which apply to indigenous companies – Senator Coghlan made this case very well – but not to people who compete with those companies in the marketplace. It is unacceptable for the Oireachtas to pass laws which only apply to indigenous companies and do not apply to companies based outside Ireland and it is not easy to pass laws in this jurisdiction which apply to goods, services or newspapers which are produced outside the State but which are sold here in competition with Irish products.
The Minister of State used as an example a journalist such as Fintan O'Toole who, as an employee ofThe Irish Times, wished to publish a book about his writings in that newspaper. This practice occurs regularly and is usually supported enthusiastically by the newspapers because it gives them publicity. However, this is dealt with in section 23(1):
The author of a work shall be the first owner of the copyright unless–
(a)the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary,
The Fintan O'Tooles of this world, when dealing with employers, will say they wish to write a book based on the work they do and will negotiate with their employers to do so.
That is an aside from the main topic, however. It does not answer why we are singling out certain journalists, that is, only those who write in newspapers and periodicals. Why does it only apply to Irish based newspapers and periodicals and not to British based newspapers and periodicals that sell in this country? That is unacceptable. I understand the points made by other Senators but it is unacceptable to pass legislation that inhibits the possibility of Irish companies surviving in competition with foreigners. We did it previously and it was a mistake. Let us never do it again.
It would be interesting to be given examples of why it is believed this section, if it works as the Minister of State wishes, would affect the competitiveness of Irish newspapersvis-à-vis British newspapers. I accept Senator Quinn's point about us not doing things that way but I am not sure, if this section works the way the Minister of State wishes, that it would have much impact. I look forward to being educated in that regard.
How would the section prevent a journalist who is employed by a newspaper publishing his or her work on the Internet before it is published by their employer? Where is it suggested that they could not do that? That is my concern. There is nothing in this section which puts a time restriction on when they would publish it in other media.
I am grateful to the Minister of State for his explanation. I doubt that anybody wishes to blunt the edge of investigative journalism in this country. However, we should not use the copyright laws to control newspapers. Another debate can be held on that issue.
I accept the general practice, as outlined by Senator Quinn, of journalists of standing who wish to produce books of their articles or books arising from their work. I know of no newspaper which would refuse that or would not be delighted to see it. The essential point is not about the protection of newspapers in Ireland from competition but the fact that the industry is moving in two directions at the same time. It is converging in the mix of media being employed and it is globalising. If we put this type of restriction on the print media in Ireland, it will look foolish after a year or two.
I was glad to hear that the Minister of State is prepared to examine it further. Perhaps it can be reformulated in another way which makes it more palatable to all parties and is fair to all, not least journalists. The Hong Kong experience is not a particularly apt one. The purpose of that Act was to enable journalists to share in the subsequent exploitation of their work through subsequent publication in other media by the owner. That is not provided for here.
Like Senator Ryan, I believe the application of a 70 year copyright is probably not sensible. I would be happy if the Minister of State examined this again and, in particular, looked at the question of protection of the right of first publication so that subsequent exploitation is not done in a way that is detrimental to the owner or competes in a damaging way. That could be expressed in a way which does not inhibit the right of the creative writer to make the most they can from their work.
Senator Hayes made a point earlier about libel to which I did not respond. The copyright law cannot be responsible for problems with libel. My understanding of the Hong Kong situation is that it provided for direct financial compensation for employees whose work is exploited in secondary ways by the newspapers. They were financially compensated at the time of doing the work.
Senator Coghlan said that, as far as he was concerned, the newspaper industry and the NUJ were in agreement. That is not my understanding. If it is the case, perhaps somebody would explain it to me. The NUJ certainly did not lobby me substantially. My job, notwithstanding lobbying, is to get the right balance and to ensure that everybody is treated fairly and equally.
The Fintan O'Toole type of situation was mentioned. In that case the freelance journalist owns copyright. As the Senator correctly stated, in many cases they would have their own contractual arrangements in place.
I am trying to remember the other points made.
What about prior publication?
I understand they would be barred from submitting articles to Internet newspapers or syndication services. The Senator is correct; that would be ruled out.
Why would they be unable to publish it on their domestic website the night before it appears in the newspaper?
I am almost certain they would be barred from publishing it prior to its publication in the newspaper by which they were employed.
They would be sacked.
That is more like it.
Can one sack a person for doing something which is legal? People have a legal right to do this according to the section. One could end up in a very contentious court case for sacking someone for doing something which is explicitly supported. At the very least there should be a reference, as Senator Hayes suggested, to an absolute guarantee that first publication rights rest with the owner. That is not clear from the section as currently written.
Also, as Senator Hayes has said, some thought should be given to the way these media will develop. I accept this is an anomaly but I like anomalies. There is enough of the anarchist left in me not to believe the world should be run by people who are consistent about everything.
Is the Senator a friend of the barristers?
I am not sure what Senator Coghlan means by that.
They gain from those situations.
Two things must be done. First, the convergence of media, which Senator Hayes validly raised, must be addressed. Second, we must guarantee this anomaly cannot be used to publish material through other media before it is supplied to employers who have paid for the travel and other costs
The Senator's point regarding material being first made available requires consideration. I ask the House to leave this section and before Report Stage I will look at how it can be improved.
To return to the point of Senators Quinn, Ryan and others regarding competition from the UK, the legislation we are introducing needs to be good quality and we should not compromise that quality on the basis of competition. In my Department—
But the Minister—
Let me finish my point. We should not compromise the quality of legislation purely on the basis of competition. Competition in the newspaper industry should not rule the roost regardless of the implications for individual journalists and their traditional rights in our regime. Journalism and media have a good reputation in this country. We are trying to introduce good quality copyright legislation which takes account of traditional arrangements in place. Obviously we must take competition into account but it should not rule our decisions as legislators. In this section we are restricting a position journalists have enjoyed. I propose we leave it there. Some improvements have been suggested, particularly with regard to first use which is a reasonable point. I repeat that my mind is not closed to future submissions from Senators.
I disagree with the Minister's point that we should not compromise legislation because of competition. I have experience of this from my business. We have passed laws which apply only to indigenous businesses and not to those with which they compete from outside the State. If we enact good legislation which applies only to Irish companies even though they are competing with other companies, in a few years we will not have Irish companies because the marketplace is competitive. If we tie the hands of indigenous companies and do not tie the hands of others, in the long term in a competitive marketplace the Irish companies will cease to exist. Perhaps that sounds like an exaggeration. It may take some years but in a competitive marketplace they are unlikely to remain in existence. I would be happy to go along with this if the Minister could answer the one question he did not answer, that is, how does he intend to impose this on Rupert Murdoch and Conrad Black? I understand the Minister will not answer that because it is unlikely he could impose it. I am not looking for an answer.
I have a slight concern and I raise it with the best intentions. Last night we debated a Bill to which the Minister accepted a number of amendments. It went through Report Stage and was passed at 10.15 p.m. Today this Minister is saying we should leave this Bill and he will look at it again and come back to us. We are trusting the Minister a lot as he has not accepted any amendment. He is putting things in a great big fireball which will hit us on Report Stage. Perhaps he is raising our expectations too high. I hope he is not. I hope he will listen to us as he promised and that he will respond. He has not shown that response by accepting amendments. I hope that he will accept some amendments later and that on Report Stage the Minister will have a receptive ear and will take action on the basis of this debate. This debate has been very useful and I am happy not to press my amendment on the basis of the Minister's word. I would like him to think seriously about the implications.
One implication to which I had not given enough thought was that raised by Senator Hayes, namely, the convergence of the media, which Senator Ryan also mentioned. In five or ten years – or perhaps two or three years – there will be such convergence of media we will not be able to distinguish between them. We are identifying and applying this to only one medium.
I am also happy not to press my amendment in light of the Minister's assurances. I believe the Minister means well and we can take him at his word that this will be examined in much greater detail before he returns to the House for Report Stage. Like others, I am interested to know how it will apply to outside media moguls who operate freely and successfully in this country.
In the manner of Myles na gCopaleen I ask what we are all in favour of. Competition. And what kind of competition are we all in favour of? Fair competition. And what is unfair competition? Competition we do not like. We should be careful. This will apply to any journalist working in this State, whether the ownership of his employer's newspaper is in this State or another. The right belongs to the individual journalist. A newspaper from outside the State may not forbid a journalist from exercising his right.
The three daily tabloids cause the greatest concern to newspaper proprietors in this State. They all have Irish editions and are sold on the strength of Irish journalists' contributions in sport and other areas.The Sunday Times also has an Irish edition and an Irish editor and it is printed by The Examiner in Cork. The analogy with Senator Quinn's position is not overwhelming. There are differences.
This confers rights on individual journalists. The fact the journalists' employers are based outside the State will not allow those employers to take away those rights. What damage would this right do in terms of the competition between Irish and British newspapers?
When is it proposed to sit again?
Next Tuesday at 2.30 p.m.