Before we resume Committee Stage, I want to clarify there are three lists of amendments, the earlier list numbered one to 43, an additional list with a lot more than 43 amendments which was circulated last night and a one page white list containing seven amendments which was circulated today.
Copyright and Related Rights Bill, 1999: Committee Stage (Resumed).
May I have a copy of the white list? I have not seen it.
I would be grateful if the House would allow me to clarify some general matters which arose on the first day of Committee Stage of this Bill.
Some Senators referred to the fact that the Government had not tabled any Committee Stage amendments. In view of the lengthy consideration which has gone into the preparation of this Bill – of which I have no doubt Senators are aware – the Government takes the view that the eventual number of amendments which I may table will not be in proportion to the length of the Bill. Furthermore, since the Bill was published in early April, the limited resources of my Department's copyright section have been largely preoccupied with EU-related work, particularly on the proposed directive on copyright in the information society, a proposal of fundamental importance to the future of copyright and copyright-based industries in Europe. I express my appreciation of the work of my officials. Three officials are working on this Bill. I commend the work they have carried out since I came into office three years ago, not only in preparing this legislation and helping me through this process, but also in helping me meet the many interested groups. I know Senators are aware of this. I thank them for their help on this large Bill with 355 sections.
Accordingly, while a number of proposals for change were under consideration, it was not possible to complete in time the detailed examination which must precede the adoption of any measure in this most complex area of law and table amendments at that time. I am happy to say that due to a temporary lull in EU-related work, it has been possible to table Government amendments today, including an important group dealing with the waiver of moral rights, on which Senators expressed concerns. I strongly reiterate that the lack of amendments on the first day was purely a function of work pressures external to the House.
The House has gone a long way towards making up for any lack of numbers from the Government side with amendments tabled by Senators. I am grateful to all Senators who have contributed to this debate, particularly to those who have sub mitted amendments, for their work in advancing the process of testing and scrutinising this very important Bill. However, as with possible Government amendments, Senators will understand that in the case of such complex legislation, it must be a matter of principle that no amendment can be adopted until it has received the fullest examination to determine its desirability and its legality in constitutional, EU and international terms. Senators have made interesting proposals which, they may be assured, will receive such examination and may be adopted in due course if I conclude they would effect an improvement to the Bill overall. I reiterate that point because, although we may not be able to accept points on the floor of the House, we may consider them in the context of the development of this Bill on further stages. As we speak, submissions are still coming in. I emphasise that we have a strong and comprehensive Bill.
Equally, I am sure Senators will accept that if I take the view that a proposed amendment goes beyond an acceptable boundary which should exist in copyright law or is unlawful – for example by reference to Ireland's obligations under EU and international law – I would be failing in my duty to this House if I did not bring this to its attention.
On the issue of time, the Government is anxious the House has the opportunity to give this Bill detailed consideration. The suggestion on the last day that the Government assumed Committee Stage would be taken in a day was entirely without foundation. Having said that, the Government is not indifferent to timing considerations. Some Senators have pointed to the need for modern, effective and efficient copyright legislation to be enacted to replace existing antiquated arrangements. Furthermore, the transposition into Irish law of outstanding obligations undertaken under EU directives and international treaties on copyright and related rights has become very urgent. Failure to do so by 1 January 2000 when developing nations become bound by relevant obligations in international law to which Ireland became subject on 1 January 1996 – that is before my time as Minister of State – would have very serious consequences for our relations with our trading partners in the EU and international sphere. Failure to make definitive, substantial and measurable progress towards this objective could seriously damage those relations and the atmosphere for investment in the copyright based industries. These include industries of fundamental importance to the modern Irish economy and to our culture, including software, the film industry, broadcasting, the sound recording industry and the music industry in general.
I am not asking Senators to forgo proper scrutiny of the Bill. However, since the urgency of this reform is clearly accepted on a broad basis in the House, I ask Senators, on behalf of the Government, for their help in completing all Stages as soon as is reasonably possible and before the summer recess so that the progress necessary to secure this vital reform at the earliest possible date is maintained.
I appreciate the opportunity to put those comments on the record in light of our discussions last week. We have a long day ahead of us and I am anxious to get down to business. I am echoing the views of many Senators who are conscious of the urgency of this Bill from the point of view of our international obligations.
I appreciate what the Minister said because it has relieved some of our concerns. I was concerned that the largest Bill I have seen in my seven years in this House would be passed quickly. I am delighted the Minister said it is not his intention to rush it through and that it will be given full consideration. I have tabled a large number of amendments to the Bill. The more I studied it, the more concerned I became that it should not be passed without as much input from Members as possible. The Minister is anxious to meet the deadline of 1 January 2000 and we will do all we can to ensure that happens. I am not sure that means the 195 page Bill will be rushed through in two or three sessions.
I am concerned about the Minister's reference to international law, an area on which I am weak. I understand EU directives and treaties but I am not sure about international law on copyright. Perhaps the Minister might clarify that so that we know what international copyright laws we must abide by and on what basis they are established. Are they United Nations laws?
Senator Quinn referred to the fact that we were behind in relation to international law. I represent Ireland at the World Trade Organisation, for example, and we are clearly out of step in our international obligations under the WTO treaties, TRIPs Agreement and the various legal intellectual property agreements at international level. We are out of line when it comes to copyright law at that level. I am not in a position to steamroll anything through, nor do I want to do so. I want to hear Members' views.
Before I became Minister of State, we had obligations. Senator Quinn mentioned the Americans taking action against us under international law. That was another reason for us to try to deal with this as quickly as possible. Any lay person looking at this will recognise that it is the most complex and the largest legislation in the history of the State. It will take a lot of effort on all our parts to conclude our work in the Seanad and then in the Dáil.
Views have been expressed by the National Union of Journalists since I last spoke here. Last week strong views were expressed by the Senator and others about the newspaper industry and clarifications were made because a Fine Gael Senator referred to the NUJ as having a particular position. I was one of a number of people who suggested the NUJ had a view on this because I was trying to meet the middle ground. I had to try to marry the powerful interests of the newspaper industry and the journalists. I struck a balance as a result of much consultation before I came here. Few amendments have been tabled because I had to make a call on many important issues.
I am open about the lobbying which has taken place during this debate. We are not just talking about the newspaper industry but about the music industry, the software industry, our libraries, schools and intellectual property rights. I am anxious to get through them all and I am conscious of the time limits. I assure Senators it has not been my fault or the fault of my three officials that we have not been here before now.
Senator Quinn referred to international treaties or obligations. I have already declared my interest in that I am a music publisher. The Irish Music Rights Organisation is in dispute with America at World Trade Organisation level. It is being assisted by the European Union. Ireland's case will be considerably strengthened by the passage of this Bill. The Americans are refusing to pay millions of pounds to Irish composers and publishers as a result of this dispute and they are using the stick and carrot approach. They are using threats and intimidation and alleging that this country is no better in terms of copyright legislation than some of the Third World countries.
I am only adding a codicil to this debate because I want to emphasise the importance of this area. Irish composers are being denied millions of pounds which they should receive. The passage of this Bill, which I hope will happen sooner rather than later, will considerably enhance the case the European Union is making at World Trade Organisation level. There are international obligations and implications attached to the passage of this Bill.
All those matters have been adequately clarified. I would like to continue consideration of the amendments.
The last day when we discussed section 23 Senator Coghlan said the NUJ supported this section or at least had no objections to it. I was doubtful about that. It has contacted me to say it does not support it and that the contrary is the case.
On a point of information, I will read into the record of the House a letter from the Irish organiser of the National Union of Journalists about the implication raised in the Seanad. I do so as a member of the National Union of Journalists. It states:
This is a misrepresentation of the union's position and has led to widespread confusion among our members and indeed among members of the Oireachtas. The NUJ is opposed to certain sections of the Bill but for very different reasons to the NNI. Senator Coghlan has confirmed that he was in error and proposes to correct the record of the House.
I would be happy to deal with this in an intelligent and sensible way during the month of September. I and other Members are astonished that the Dáil will not meet until early October. We could discuss this during September which would give the Minister time to consider amendments. We could move through it at a reasonable pace. The Minister is being disingenuous. We do not want to hold up the progress of this serious Bill. I am happy to meet two days a week in September to go through it so that it is finished in plenty of time for the next Dáil session. This should not be a contentious issue. I do not understand why it must be out of the Seanad by the end of next week.
In the absence of Senator Coghlan, we accept what the NUJ has said, and I am sure he does as well, as I am filling in for him. I am sorry for the misconception and I apologise for the error.
We debated this amendment considerably two weeks ago and the Minister agreed to consider it and deal with it on Report Stage. We are proposing to delete section 23(2) which states:
Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose, other than for the purposes of making available that work to newspapers or periodicals, without infringing the copyright in the work.
I had hoped that in the intervening period the Minister would have had time to consider it. It seems unacceptable to single out one medium when there is a coming together of the various media. How we can distinguish one medium, newspapers, and say that in the case of newspapers and periodicals the law of copyright will be different from that in other media? I have great difficulty in understanding why we are singling out one medium. If an employee of a newspaper or periodical writes a computer programme, a book, a poem, the law applying to him will be different from the law applying to someone doing it on his own or an employee of a radio station or any other medium. It is unacceptable to single out one medium for different treatment under the law. I do not understand how the Minister said yes to this.
Members made the case against singling out this medium. I urge the Minister to reconsider this. When we debated this two weeks ago, the Minister did not accept any amendments but assured Deputy Hayes he would consider them on Report Stage. It seems that after two weeks we can consider them at this Stage.
This is an anomaly and a very strong case was made when we debated this previously that with the convergence of different media it will be difficult in the future to distinguish between type, print and electronic media and how the law will apply to one medium and not the others. The Minister may have had time to consider the case and I would welcome his viewpoint.
I wish to put on record some of the concerns of the National Newspapers of Ireland Association, as I am not sure that this has been done.
I only received it after the last debate, which was not all that helpful, but it does seem they have considerable concerns. In particular, there is nothing to stop the employee journalist from promoting his work in the public domain otherwise than via another newspaper or periodical, in other words on television and radio, thereby potentially mandating an employed journalist to undermine his employer in the marketplace in circumstances where it is unlikely that the employer could complain that such conduct amounted to a breach of the journalist's contract of employment or implied obligations as to confidentiality. They also make the point that has been extensively made by my colleague, Senator Quinn, that it seems to be unique to the newspaper industry and this creates the very reverse of a level playing field. It is also complicated by the fact that we have new technologies. Since we have an arduous day ahead of us and this is on record of the House, there is no point in labouring it.
I realise the owners of newspapers have made a very strong case, but I did mention on the last occasion my worries about copyright from the point of view of journalists. The National Union of Journalists contacted me to say it was deeply concerned at the decision to amend the draft to diminish the copyright of staff journalists, apparently in response to representations from the National Newspapers of Ireland. While the original draft did not alter the Copyright Act, 1963, the published Bill is not acceptable to the National Union of Journalists because it represents a fundamental and dangerous change in Irish law. The NUJ objects to section 23 (1)(a) which denies first ownership of copyright to the journalist who is an employee. Because the NUJ seeks the ownership of copy right for staff members it also objects to section 23(2) which only allows the author "in the course of employment by the proprietor of a newspaper or periodical" to make use of the article for any purposes other than making it available to newspapers. The NUJ objection is that the subsection is too restrictive and it notes that National Newspapers of Ireland also objects, for the opposite reason. The NUJ states that these sections are predicated on the perceived requirement to bring Irish copyright law into line with the law in the United Kingdom and the United States. This is a narrow definition of best international practice and views the UK and US models as superior to all others and sets aside the principles enshrined in the Universal Declaration of Human Rights and the Berne Convention.
Copyright in all European Union states, apart from the UK, cannot be held by a legal entity and must be held by a person. The only exception to this is where companies are formed by creators specifically to collect and distribute royalties as a matter of convenience to the original creators. That is very important.
It is worth noting that in the European Union states, apart from the UK and Ireland, an author cannot waive the personal rights of attribution or integrity. This is consistent with the logic that an individual cannot sign away a basic human right.
This summary from the NUJ is intended to help us deal with this Stage of the Bill and I think we have to take note of its position, particularly where it states that, apart from the UK, nowhere else in the European Union can a legal entity hold copyright. It has to be a person.
I do not want to repeat what I said last week but I want to put two things on the record. First, the Murdoch organisation sacked two journalists in a subsidiary television company in the United States because they insisted on making public the findings of an investigative programme on environmental depredation in a southern state of the US. The polluters wanted to suppress the television company. The two journalists who made the programme enabled the information to be leaked and because of this Mr. Murdoch's organisation saw fit to sack two people who were nationally reputed journalists. Therefore, I am not keen on leaving copyright indefinitely with the owners. Let us be careful about that.
The printed and written word is different from everything else. The fact that it can now be viewed on a screen or stored on a disk does not get away from the fact that the written word is different. It differs from visual imagery and music and it will continue to be different. Some wonderful day we may have a blank page book into which we insert a CD-ROM which becomes the pages we want to read but it will still be the written word. I am not aware of anyone who has ever envisaged a situation in which we did not read a considerable amount. Reading differs from listen ing because it consumes our imagination in a way that listening cannot nor does not. We can walk around a house and listen to the radio but you cannot do that with the written word without severe consequences for your physical safety. Some of us have done it but have lived to regret it by falling down stairs. Nevertheless the written word is different for the reasons I have outlined. There is also a wonderful historical tradition of written journalism which I think is valid. We discussed this issue on the last occasion and, therefore, I have no desire to waste time.
The Minister did suggest that he would look at restricting the right of a journalist to publish material before the copyright owner or newspaper owner has the first opportunity to do so. The only valid concern outlined in the NNI submission was the possibility of material being published in advance in some other medium before it is published by a newspaper. I do not support this amendment tabled by Senators Hayes, Quinn and Coghlan because it is far too generous to the owner and, as I said on the last occasion, I like anomalies.
I am confused as to whether Senators are in favour of the amendment. Is there a diversity of opinion on the Opposition side of the House?
Of course there is.
This amendment appears to look after the copyright of the printed word. Its aim is to ensure that the owner or the person who writes an article has the power to publish a collection of their articles in a book and sell it in certain circumstances. There is nothing wrong with that. Anyone who is in favour of this amendment seems to want to take away that right. Anyone who is not in favour of this amendment seems to need an amendment that would make the subsection wider. I was not sure what Senators wanted.
I am sorry that I was late coming into the House. I did not anticipate that we would reach this Bill so early but it is probably due to the ever expeditious Minister and obliging Members.
I apologise that I inadvertently misled the House on the NUJ's position. I did that because I was inadvertently misled. As a result of that I have received a wealth of material from the NUJ. I will now try to digest it and speak sensibly about it.
On the last occasion we debated this Bill the Minister was at some pains to state that he had sought to obtain balance. I have no doubt that that is what he wants to do. I am interested in a level playing pitch. I do not wish to detract from the NUJ's viewpoint. If we accept its viewpoint, how will the Minister level the playing pitch? He is not providing the same right for journalists working in other media, particularly broadcast journalists. The section is untidy and perhaps not in the form the Minister intended. Before I comment further I would like to hear his response.
Does Senator Norris wish to make an additional point on this amendment?
Yes. I was pulling some material from National Newspapers of Ireland. Senator Ryan, as he often does, has raised a useful point. Any mention of the name of Murdoch is guaranteed to raise my hackles. I am not surprised that he has mistreated his employees in this manner. It is worrying because it suggests that instruments can be used to inhibit the dissemination of information to which citizens are entitled. Freedom of information is one of the most important cardinal rules that should be observed. However, newspapers may have some point because the case could be made that a reporter could do a series of taped interviews from a war front or an interview with a leading political personality at a time of crisis in this country. The impact of that action for the employer who paid a reporter to undertake that job would be threatened if these tapes were made available to a radio station prior to the publication of the newspaper. You are undercutting the value of the work undertaken and paid for by the newspaper which has a legitimate interest. Could we get around that problem by introducing the notion of profit? Could we say that reporters cannot make use of this material in a primary commercial sense for profit but they can make it available in the public interest? If we did that it would improve the situation a little.
I thank Senators for their comments and Senator Coghlan for coming here and speaking in a transparent manner. I accept that, like me, in many cases he might not have had all the representations that one would require. Listening to the views of people is what it is all about.
In my opening statement I made the point that there were many interests in this area. Journalists and the newspaper industry have an interest in this area. Prior to this legislation journalists employed by a newspaper traditionally enjoyed a copyright interest in their work, except in relation to the use of that work in newspapers. That was a broad traditional copyright interest. The present Bill would remove the retention of copyright, to the considerable benefit of the newspaper employer. Section 23(2) imparts no more than a limited right of use to employed journalists outside the newspaper context. In response to Senator Norris, that subsection refers to a journalist who writes articles in a newspaper and they wanted to use them elsewhere. That is a reasonable request and it is desirable that they should have that right. This section is a reasonable compromise between the interests of the journalists concerned and those of their employers and bears in mind the historical background in relation to print journalists. We are not talking about a large number of employees in the sense that many journalists are freelance and agree their contracts with their employers. This Bill does not have a bearing on freelance journalists but refers only to those who are employees.
I have considered this matter since I last spoke to the House, my position is reasonable and I stand by it. I will accept amendments if they fit with the thrust and approach of the Bill, but I will not accept amendments unless they make good sense and fit with what the Government wants to achieve for all aspects of this issue – newspaper journalism, music, software and others. I must take into account many considerations as we proceed with this Bill. I have given much consideration to the amendment but that is my opinion.
The NUJ has rightly suggested that the Bill takes away some of its powers. However, in order to be fair it is important to allow the journalists concerned to retain the right to use their work outside the context of their employment in the newspaper industry. This issue will progress to other Stages but that is where I stand on this matter.
I call Senator Coghlan and ask him to make a brief contribution as we have debated this amendment in great detail.
For the sake of balance I would like to place the NUJ's views on record as it took the trouble to write to me in some detail.
Senator Henry has already done so.
I owe it to the NUJ to do so. How does the House know that Senator Henry had the same communication as I?
All Senators received the same communication.
We must try to avoid repetition.
I concur with that sentiment, a Chathaoirligh. I was not present when the House commenced debate on this amendment. If the information is on the record I accept that fact. However, this section is still not correct. I do not believe that we can allow a "halfway house" provision which operates in one direction with regard to certain groups of people but in a different direction with regard to others. I am still unhappy with it.
I am in favour of giving freedom to journalists as they have a tough life and I have much respect for them. However, I could envisage a situation involving a malign newspaper proprietor like Rupert Murdoch or in which there were bad relations between an editor and an employee or former employee. The collection of occasional articles into book form could be prevented under copyright law if the journalist did not have some right to the copyright on his or her work. That would be a pity and I understand that scenario.
The Minister of State did not reply to the other scenario which I would like to put to him again as clearly as possible. What of a case in which a Sunday newspaper, published once a week, extensively advertised an interview with a major European public figure which contained sensational developments? A journalist might carry out an in-depth interview with this person but the interests of the newspaper as a whole would be undermined if, for example, the entire interview was made available on tape to a radio station on the Thursday evening before the newspaper was published. I am concerned about such a scenario as there seems to be a gap between the interests of the journalist and the interests of the newspaper.
I am not antagonistic towards the rights of journalists and they should be entitled to elements of copyright. However, can we stipulate that journalists cannot make use of material before the first publication by a newspaper or that they cannot make use of it for profit before such publication? This might need to be teased out further and the Minister of State's advisers might come up with an amendment, but it seems that the rights of newspapers could be impinged. I do not want to clip the wings of journalists but I can envisage a situation in which a newspaper pays a journalist's salary and travel expenses to an exotic location to get a scoop only to have it blown a few days before it publishes the article. That is not fair. Can we make a provision which prohibits use of material prior to the first publication by the newspaper and or, prohibits its use for profit before such publication?
I am more concerned about the suppression of information. Independent Newspapers will have a great advantage as it controls evening, daily and Sunday national newspapers and dominates a large number of regional newspapers. It is in a stronger position to suppress an article it does not want published thanThe Irish Times, The Examiner, the Sunday Business Post or other smaller journals. It remains a serious concern that a powerful group will be in a powerful situation.
I accept Senator Norris's point about a case in which a journalist is sent abroad at great expense to an exotic location such as Kosovo and gives the report to RTE instead of the own newspaper. However, I am more worried about cases in which someone sitting in an office creates material which cannot be published because the newspaper owns the copyright. I am more worried about information not being available to the public than about someone selling a story. Such people would be fired for doing so and there would be nothing more to worry about. These people are employees and may try to gain employment with those to whom they sold the story. I do not have a solution, but we should be careful.
Senator Coghlan spoke about print journalists having an advantage. I would prefer to include those working in the electronic media rather than excluding print journalists. I accept Senator Ryan's point that there is something exclusive about print about which we must be very careful. I do not think that one is allowed to sign away intellectual property in the UN Universal Declaration of Human Rights. Article 27.2 states: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". That is important.
Speaking as someone with limited experience as a working journalist, I will try to inject a note of realism into this issue. Whether one is a full-time employee or a freelance journalist there are contracts which include preconditions and criteria accepted by both sides. Let us move the arguments forward a little. Let us consider a case in which a journalist is sent on a foreign assignment. He or she knows that the main reason they are being sent is to conduct an interview, for example, which will be exclusively published by the newspaper for which he or she works and which pays his or her expenses and salary. I cannot envisage a scenario where a journalist worth their salt would proceed along the lines Senator Norris has outlined and, prior to the publication of the interview, would try to sell the story to an alternative news medium. I appreciate we are talking about legal interpretations of ownership but I cannot see that happening.
In the context of what has been said about other media, again I cannot see a scenario where an employee of a newspaper would do anything along the lines suggested. I see no great difficulty in a journalist employed by a newspaper who wishes to use the fruits of his or her work in future having some rights. Surely they must have some rights because their work is creative intellectual property. Those Members who received the documentation will know that this legislation seems to mirror the UK legislation which is out of kilter with a great deal of similar legislation.
Without wishing to sound conceited or arrogant, I respect people's views but I am trying to inject a note of realism into the debate by relating the working day of a journalist, how they operate and how they perceive their work. This especially concerns journalists employed exclusively by a news organisation.
I thank Senators for their comments. I agree with Senator Mooney in the sense that, in the UK, these journalists' rights were abolished without any effort to balance them against the rights of newspapers. It may be of interest to Senators who spoke on the detail of what is involved in this section to know that, in Hong Kong, the copyright ordnance of 1997 provides for financial compensation for all employees whose work is exploited in secondary ways not contemplated at the time of the composing of the work. That is similar to what we are trying to achieve and may go some way to answering some of the questions raised by Senators Norris and Henry.
We debated this matter not just today but on the last occasion. I have done my best to achieve a balance and believe I have done the right thing. I have stated my position and pointed out that it is different from what has been done in the UK. The Bill strikes a fair balance in that it gives a newspaper employer an added right but also allows journalists to reasonably exploit their talents in certain limited ways. That is as reasonable as we can achieve.
I will not press the amendment but I would have welcomed a commitment from the Minister of State to consider Senators' comments before Report Stage. It is wrong to single out one medium as opposed to others. Senator Norris and others have made the case for the granting of protection to an employer to ensure an employee does not abuse the situation after money has been spent on sending them on an expensive assignment by selling their story to another medium before publication. That has not been taken into account and I would welcome a commitment from the Minister of State to consider it before Report Stage. If he gives such a commitment, I will not press my amendment which deletes the section. I would welcome it if the Minister of State would consider it rather than saying it is afait accompli.
I have examined the matter and listened to the views expressed on both occasions. My position is as I have stated.
The Minister of State should be wary because it is not just he who has time to reflect. We do also.
Senator Norris was an eminent academic and is still an eminent Joycean scholar. Is the copyright for any work on James Joyce he compiled or wrote when an employee of the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin vested in the college or in Senator Norris? As the section is written, any work Senator Norris or I wrote in our academic careers is vested, in my case, in Cork Institute of Technology and, in Senator Norris's, in Trinity. I am not sure that is a wonderful idea, especially where there are writers-in-residence.
We need to know if the work was produced in the course of a person's employment. Is that the context in which the Senator raises the question?
I am not nit picking – this is significant. If Trinity College or Cork Institute of Technology employs a writer-in-residence, does that mean the copyright for his or her creative output for the period for which he or she is an employee of that institution belongs to the institution and not to the individual? Does that mean, if I put together hand-outs on chemical engineering – most academic textbooks are generated from handouts – and write a textbook from them, which means it would be the product of my work as an academic, the copyright for it would be vested in Cork Institute of Technology or, in Senator Norris's case, Trinity? I am not happy with that.
The Senator's comments are interesting and I appreciate his raising the matter. However, they perhaps more properly refer to section 23(1) which states that the author of a work shall be the first owner of the copyright except under certain circumstances. I would be more than happy to examine any of the issues raised which are relevant to various sections. The essential factor is whether the work is done as part of a person's job. Senator Ryan asked a legitimate question in the context of the example given by him and I am happy to have it examined. I have outlined my position as regards the issues we discussed concerning employers and employees. However, we need to examine the issue the Senator raised regarding artists, creative people and academics and I will ask my officials to do that in due course.
If copyright is vested in a corporate entity, is it in a position to alter a work in a manner the author may not want, such as including photographs which the author may not consider desirable because he or she perceives them to significantly alter the tone of the work? Does the author have any control over that or does the employer have total control? That is very important as regards copyright.
Under current newspaper practice, authors have no control whatever. I will illustrate with a case in point. A number of years ago I was asked by theSunday Press to review a biography of Oscar Wilde by Richard Ellmann, who had been a friend of mine for many years. I acceded to the newspaper's request and on receiving a copy of the book I noticed it contained a photograph which allegedly depicted Oscar Wilde, in a dress, performing the central role in his play “Salomé”. I was suspicious about the authenticity of the photograph and I knew that a newspaper seeking sensational headlines would print it.
TheSunday Press contacted me a short time later and asked me to return the book so that it could cull a photograph from it. I was reluctant to do so because I knew it intended to print the photograph in question. I said that I would only return the book on the solid undertaking that it would not use the photograph because I did not want the serious content of what I had written to be undermined in a cheap and flippant way. I also indicated that I had serious doubts about the photograph's authenticity. I was given an absolute guarantee that the photograph would not be used but, as it happened, it was blown up until it was approximately twice the size of my article and appeared under a very flippant headline. I was furious.
I discovered from subsequent research that the photograph was not of Oscar Wilde but rather of a blowsy 19th century French actress. However, that did not stop the newspaper using it to undermine the reputation of someone I was trying to celebrate in my article. This is a classic problem not only for those writing reviews but also for working journalists because the serious work they do is often undermined at the copy stage by a person placing an inappropriate headline above their articles.
To return to the interesting point raised by Senator Ryan, which is worth investigating, I assume that the term "in the course of employment" refers to the functions a person carries out as an employee. I do not believe that term has the same meaning as the term "while an employee". For example, it does not relate to anything that is generated during the period of a person's employment regardless of whether this happens during or outside working hours or whether it is part of a university project. I do not believe that is the intention but it is appropriate that the provision should be scrutinised.
In my opinion the term "in the course of employment" refers to something a person was asked to do as part of their employment. If a university pays me to do something like that, I am quite willing to let it retain the copyright. However, if it relates to a scholarly or creative work I intend to produce on my own time, then I should be entitled to the copyright.
On a point of information, as far as I am aware there is a code of conduct which allows members of the NUJ to retain some control over how their copy is used and on how photographs are used to illustrate it. Perhaps it is because Senator Norris is not a member of the NUJ that he encountered such difficulties.
That is quite likely. However, my work was still published in the newspaper and sub-editors and journalists complained about the treatment I received.
I am not pressing the amendment.
We have disposed of the amendment. We are now dealing with the section.
First ownership of copyright is a concept with which none of us disagree. However, I remain concerned about the anomalous position where there is a distinction between different categories of journalists. I listened with interest to the comments made by colleagues, particularly those of Senator Henry. The Senator referred to a journalist working on an exclusive for newspaper A who, believing it would not be published before newspaper B, passed his or her article on to newspaper B. However, because of a problem with the printing of newspaper A, newspaper B hits the streets first. The only sanction in that case is for newspaper A to fire the journalist in question. A case of this sort, with which Members may be familiar, occurred in the recent past. The Bill will not be good law if efforts are not made to deal with this anomalous position.
The Senator hesitates to mentionSweetie which is the case in point.
I thank Senators for their observations and comments. The position is that the employer, in this case a newspaper, is the first owner of copyright. In those circumstances, newspapers obviously have tremendous powers and influence. The reality is that the employer has the power to change articles, etc. written by employees.
Senator Norris referred to a case where various photographs were used in conjunction with an article. That raises the question of moral rights which an employee does not have but which a freelance journalist would have. We will be dealing with this matter later in the Bill. I thank again Senators for their comments.
I wish to make a brief comment from the perspective of a working journalist. I suggest that much of what we are debating here relates to the contract details rather than to the law. If, as the Minister of State pointed out, an employer has prior privileges, employees will have equal privileges and rights in the context of print and electronic journalism. Therefore, it is the contractual details and the arrangements worked out between employer and employee that will prejudge the ultimate scenario in respect of rights. Rather than focusing on the law, perhaps Members should consider the reality of contractual detail.
We have dealt with the section 23(1)(a) at sufficient length. However, section 23(1)(b) states that the author of a work shall be the first owner of the copyright unless " the work is the subject of Government or Oireachtas copyright". In what circumstances would a work be the subject of Government or Oireachtas copyright and not be a work made by an employee in the course of his or her employment? I am intrigued as to whether we are using a sledgehammer to crack a nut in this section. Are we putting in place double layers of protection in order to safeguard the Government and the Oireachtas? It appears that there cannot be any work which is the subject of Government or Oireachtas copyright and which was not produced by an employee. Therefore, it should be covered by section 23(1)(a).
As I understand it, this would cover a case where the Government would have commissioned works to be produced by people other than civil servants.
Amendments Nos. 6a and 12a are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 6a:
In page 36, before section 24, to insert the following new section:
24.–The copyright in a work made by an employee in the course of employment, and of which the employer is first owner pursuant to section 23(1)(a), shall expire 70 years after the date on which the work is completed.
This amendment came about on foot of a comment made on Second Stage by Senator Ryan.
That remark was copyrighted.
I believe I have happened upon a matter to which it is worth giving serious consideration. I have prepared a raft of notes on this amendment and I hope I do not bore the Minister of State by outlining some of my thoughts.
We are dealing with Chapter 3 of the Bill which is concerned with the duration of copyright and which deals with issues that go to the basic principles at the heart of the Bill. We are discussing fundamental principles and I attach a great deal of importance to getting them right. This chapter runs to only two and half pages and has only 12 sections. Some of the thorniest issues we have to resolve in our overall scrutiny of the Bill are in those few pages. The amendment before us will serve as good introduction to the overall issue.
Senator Ryan pointed out two weeks ago that in giving rights to an employer over work created by people in employment the employer was having it both ways – having ownership of the work and basing the duration of the rights on the length of the life of the employee who did the work. What he said is true – we agree on occasions. That latter idea almost smacks of slavery.
I believe strongly in the general principle that the employer should own the copyright, not because I am an employer, but I do not see how one could run a business in any other way. In other words, if an employer employs a person to do a job, that copyright should belong to the employer. What an employer buys is the employee's work, not his or her life. To do so would be slavery. It seems appropriate, therefore, that the duration of the copyright should not be determined by the life of an employee, especially since the employee concerned would not at any stage have any rights in the work created.
This amendment is intended to address that particular anomaly, but it also raises the fundamental issue in Chapter 3 of how long copyright should run. I would like this chapter to contain a clear principle or set of principles that would guide us and guide further generations on this issue of the duration of copyrights. I do not see such a principle in this chapter at present, but I am hopeful that in the course of our discussion, and, perhaps, through further work by the Minister of State's officials, clarity may emerge in regard in this issue.
The point at which to begin is by discussing the fact that we are limiting the duration of the right in the first place. That must be justified and that justification may give a lead to the problem. If I own a house or land, I own it in perpetuity. That is the law of the land as it stands, but it does not have to be that way. The law could provide that one's ownership of a house or land would extend for one's lifetime or for 50 or 70 years after one dies. It could be the law that ownership rights on houses or land would revert to the State after a set time. Under our system that is not the case – what one has one holds forever until one sells it or gives it away.
I would like the Minister of State to understand this point because it is important. If I own land, I own it forever until I sell it. This does not apply only to real estate; it applies to anything else. If I were to buy Telecom Éireann shares tomorrow, those shares would be mine in perpetuity, assuming the company survives forever, which I hope and trust it will. My rights to enjoy a share in a home or in the ownership of Telecom Éireann will belong to me and my heirs forever, unless and until I exercise my right to cede, sell or give them away to somebody else.
Where property in general is concerned, under our system, there seems to be an initial presumption that ownership rights are in perpetuity. It does not have to be that way, but that is the way it is. Most property rights are forever. If there is to be a restriction on that right, there must be a justification for it. Under a rule of law that justification would normally be a question of the public interest. We defeat the notion of perpetuity on those occasions when we argue that it is more in the public interest that a property right be restricted than it is for the right to continue. That is a very basic understanding. We interfere with certain rights, understandably so, in the public interest.
A good illustration of this applies in the case of inventions. If ownership of inventions were to be allowed to continue forever, we would severely restrict the pace of progress and stifle inno vation. That principle has been accepted for hundreds of years and it is truer now than ever before. If this argument is taken to its extreme, one could argue against having any protection for inventions, but another principle or two come into play. The first is practical – if one does not reward inventions, people would be very slow to get involved in that field. By refusing to protect inventions we would hold back progress, even more than we would had we protected inventions in perpetuity.
I have a sense that I do not have the Minister of State's attention.
The Senator has my attention.
I know this is difficult material but it is an important point. We restrict certain rights, but we do so for valid reasons. The other principle is a moral one – the labourer is worthy of his or her hire. It seems fundamentally wrong that a person should not benefit personally from a contribution he or she makes to the increase of knowledge available to mankind for the future. As a result, we strike a balance. We reward creation by creating the notion of an intellectual property right, but we restrict it in terms of the length of time it will continue.
In the case of patents or inventions that length of time is delineated in a standard, consistent way – a certain number of years from the point at which the invention was shared with the public. Patents exist for a certain number of years. The life of the creator has nothing to do with it. I think all patents have the same life, regardless of the nature of the invention that a patent protects.
When we bring these considerations to bear in respect of copyright, how much of the package should we bring with us? Copyrights are far closer in category to patents than they are to real estate, in that they are not rights where physical possession is involved but rights to the control over how something is used. Copyrights are clearly intellectual property rights. In other words, they are property by virtue of an analogy with real property rather than by virtue of being real property.
Intellectual property rights in the form of patents are always restricted in time because the public interest is involved. Does it follow that copyrights should also be limited for the same reasons? I accept the public interest argument for restricting the duration of copyright, as being quite different in strength, depending on the nature of the work that is being protected.
We know from our previous discussions that it is a highly contentious matter and this Bill protects a vast range of items. In respect of some of those items, such as computer programmes, the public interest argument applies. I do not want to cover that area again as we dealt with on the previous occasion. We are at the cutting edge of progress and innovation. The protection of the author's interest is a break on progress, a desir able break on progress I hasten to add. I would not like Senator Cox or anyone else to believe I am against protecting and rewarding those who create computer programmes. Neither am I saying nor was I implying on the previous occasion that computer programmes should be protected by patent rather than by copyright. I recognise that it is much easier to establish a copyright than it is to get a patent and that this is of major importance for those who create computer programmes. I have a problem with creating and treating the copyright in computer programmes in exactly the same way as the copyright in novels or in films.
This issue of duration, which we are now discussing, goes to the heart of this. When it comes to the public interest computer programmes and novels or films fall at different ends of the time spectrum because computer programmes are at the cutting edge of modern civilisation. The length of time we should protect them should tend to be on the short side. On the other hand, the public interest would not seem to require that we act very quickly to curtail the duration of what I will loosely call artistic works. I pointed out on the previous occasion that progress in literature does not seem to be unduly restricted by the fact that works are in copyright or out of copyright. James Joyce has done very well in influencing literary thought, although his works are well protected, and I am sure his influence will not suddenly increase when his works are out of copyright, although if we continue to extend the duration of copyright, it is possible he will never cease to influence literary thought.
It is wonderful to think of great works of art being released eventually into the public domain, where they can be enjoyed free of charge by everybody. That has a nice democratic ring to it, but it is entirely mythical. If one buys a novel by Charles Dickens, one will not pay any less for it than if one were to buy the latest work by Maeve Binchy. Depending on whether a book is hardback or paperback, one will pay more according to whether the author is popular or for a host of other reasons. None of them relates to whether the book is in copyright. Equally, when one goes to the theatre or the National Concert Hall, one is not charged less for tickets on the basis of whether the work is copyrighted. I am not saying the cost to the publisher of a book and the producer of a play or a concert is the same, whether copyright must be paid for or not – obviously there is a difference at that level. However, there does not seem to be a difference in terms of public access. This is worth bearing in mind when addressing the duration of copyright.
The first principle we must address is whether all copyright should be of the same duration. Can we make one size fit all? If we could it would be a simple and elegant solution which I would favour. However, the Bill as drafted provides for different durations. This section would be much shorter if we did not have to provide for different durations of copyright. Providing for different dur ations is justifiable as long as there is an appropriate justification for the difference in each case. Provision for different durations would not be bizarre and unexpected given the wide differences in the works being published and those already protected. However, what is bizarre and unexpected is the grouping together of works which are radically different in the dimension of public interest, while at the same time distinction is made between works that seem to be highly indistinguishable in terms of that public interest.
There is no difference provided for between the duration of the protection we accord to Windows '98 operating systems and that which we accord to Joyce'sUlysses. However, why is there a difference between the duration of the protection we accord to a film and that which we accord to a broadcast? We are not making a distinction where we should be making one; where we should not be making one, we are doing so. I fail to see the underlying principles at work here, if there are any. I presume the Minister will enlighten us on that issue.
We have a fundamental choice between different durations of protection and the same duration applied to all works – a one size fits all solution. We have that choice and we should exercise it instead of letting it go by default. If we opt for different durations, the principal determining duration we should apply is that relating to the public interest. The more relevant the copyright is to technological progress and innovation, the shorter the duration of the protection should be. Computer programmes should be singled out for a short period of protection. I do not know what an appropriate protection would be. However, it should be shorter than provided for in the Bill, given that under the Bill protection of a computer programme will last for a century and a half.
Equally, as regards public interest there is a case for increasing the duration of copyright. Some people have a problem with the descendants of authors interfering unduly with the extent to which work under copyright protection can be dealt with fairly. I understand Senator Norris is in constant disagreement with a relative of James Joyce. Musical producers have long been frustrated by the refusal of the owners of the copyright of Gilbert and Sullivan to allow modern productions of their operettas.
There are arguments on both sides. One could argue that artistic progress could be hampered by such restrictions. Equally, one could argue that this matter could be addressed by having separate durations for the different rights involved, for example, the integrity right which gives the copyright owner a veto on how the work is reproduced could expire earlier than other rights. There may be others who do not like the idea of profits from artistic works being handed down from generation to generation. They could be satisfied by the State taking over the copyright after a certain period and using the proceeds to foster a new artistic creation – there are many possibilities.
As regards families, there is a dichotomy which may be worth examining and has a bearing on the contentious issue of expressing copyright duration in terms of the lifetime of the author and a period beyond. On the one hand, everyone warms to the idea of artistic creators being able to provide for themselves and their children. On the other hand, many people are not keen on the prospect of feckless future generations profiting indefinitely from the artistic endeavours of a talented ancestor.
From this mix of emotions emerges an idea of protecting copyright for the lifetime of the creator and his or her children but no longer. The lifetime of the creator can be easily determined and if one adds a period to cover the lifetime his or her children one has the kind of regime we propose. The period was formerly a lifetime plus 50 years. This Bill proposes the period of a lifetime plus 70 years. I suppose there is a certain logic in reflecting the notion of three score and ten, which is mentioned in the Bible. However, there is an equal logic in making it a lifetime plus 30 years on the grounds that this would cover the dependent period of any children's lives. A period of a lifetime plus 70 years means that in extreme cases the period concerned could be a century and a half, which is ludicrous as regards computer programmes and reflecting the public interest in promoting progress and innovation.
The Bill proposes durations which are too long or too short and which seem to reflect distinctions without a difference. It is a complicated and unsatisfactory scheme. We could discuss alternative methods until the cows come home, which I think would be time well spent, although the Minister may not agree. This goes to the heart of the Bill and the regime we are trying to construct. I propose a simple way out. It will not please everyone and it is possible it will not please anyone. However, it has the merit of being simple. The Minister will have to examine the issue of duration before Report Stage and I have tried to come up with a solution which reflects the debate.
There is a need for a new approach, and if we are to do it in a piecemeal fashion, we should do so by way of the amendments I have put down. However, my suggestion is more broad-ranging than any of my amendments. We should apply one duration to all copyright. For example, we should take the starting point for protection as the date of creation of the work or the date of its first being made available to the public. It should be decreed that the duration of protection is a standard 70 years. This would remove the lifetime concept and the messiness it creates, yet it would provide adequate rewards for the author and his or her dependants. Most people do not create valuable copyright work before the age of 20 years or live beyond 90 years. Few people living to 90 years have dependent children to support. The humanitarian dimension would be fully covered by this.
Seventy years from creation is too long for computer programmes. However, being realistic, it is better than an indefinite period which could be as long as a century and a half. We will also be under considerable pressure from interests outside the country to be generous to computer programmers. If one size must fit all – and there are sensible arguments for that – then 70 years is probably a good compromise. As was said, there are infinite combinations of what can be done. We can tailor the duration of different works to reflect the public interest in innovation. We can separate some rights from others as regards duration. We could even leave a residual right in perpetuity for the State – the Minister for Finance's eyes would light up with delight at that thought.
We should keep it simple. I apologise to the Minister for taking so long on this amendment, which I put down since the last debate. I thank the House and the Clerk for accepting the amendment which resulted from Senator Ryan's comments during the previous debate. When I saw the different durations provided for in the Bill I thought we should make it more simple and understandable. Let us stick to the time when the work was first published. Rather than restricting it to the lifetime of the author, let us specify a number of years from the date it was published. I am sorry if I have spoken for a long time but this is an important point, which I hope the Minister of State will recognise as such.
The Senator's position is very carefully thought out and well reasoned and the House ought to consider it carefully. Reference was made to Joyce, which I heard on the monitor in my office where I had to carry out some small functions. This was revisited by Senator Quinn while I was in the House.
This is a specific and particular case with which there are large problems. I would not want the House to think I am alone in my difficulties with the estate of James Joyce as it is a worldwide phenomenon. Every reputable critic has experienced these problems. It particularly affects and inhibits the work of bright young students who are constantly harassed by the James Joyce estate, which has become notorious. The person who is responsible has no professional qualifications or unusual insight into the works concerned. When I first knew him he was a complete ignoramus on the subject, and many would maintain that he still is. It is not just artistic progress but also critical progress and the professional careers of scholars that are involved here. That is a very important point.
The extension to 70 years came about because of the laxity of this country. I spotted this in advance and asked to be informed but it went through as a codicil to another European Union instrument. The Houses of the Oireachtas were left blissfully unaware of what was happening because it was signed by a Minister without being debated in either House. I would greatly welcome an opportunity to debate the issue in this House.
If the period were to be 70 years after the death of the author, we would not be talking just about the author's children or grandchildren but, possibly, about his or her great-grandchildren. There is a series of wonderful ironies in the case of James Joyce because he raises this subject in the library episode ofUlysses, Scylla and Charybdis, which takes place next door to this building, when he asks who is any man that he should claim paternity as it is a legal fiction and an instant of blind rut. In fact, the whole point of Ulysses is that Bloom is looking for his spiritual father because of the inadequacies of his biological father.
Senator Quinn has suggested something at which we ought to look. Seventy years from the gestation of a work of art is a reasonable time to accrue financial advantage to the creator and, very probably, to his or her immediate descendants. It obviates a situation where critical progress can be held up.
It was suggested that the period of 70 years may have been taken from the Bible. It did not – it came from Germany, which is significantly worse. Even in biblical terms, three score years and ten did not mean the same period of time as it does now, as the biblical year was computed in a totally different manner and was much shorter. We should be aware of these facts.
This is a very serious and well argued case. For example, in the case of 70 years from the publication of a work – if I return in my very limited and parochial way to Joyce –Portrait of the Artist, which was published in 1916, would have come out in 1986 and Ulysses, which was published in 1922, would have emerged in 1992. James Joyce died in 1941, which would have allowed a 50 year slush fund for his estate. Joyce's son, Giorgio, would have benefited up to 1976, when he died, and the rest of the family would have benefited for the remainder of that period. We are not talking about peanuts here but about vast sums of money. However, I am not particularly worried about the money. I am much more worried about the arbitrary and capricious refusal of copyright.
I asked the Minister on a previous occasion – I was not present to hear the reply as I had to attend a committee meeting – about the question of fair usage and whether a definition of fair usage would be included in the Bill. This is critically important. There is no legally binding definition of fair usage, yet it is a concept known to law. Therefore, one is obliged to demonstrate in every contested case that the usage concerned is within the concept of fair usage. There are rules of thumb but nobody quite knows the definition. It would be useful if we were given some indication of what proportion of a work being quoted constitutes fair usage.
I know of a large number of projects of various kinds – critical, artistic, theatrical and broadcasting – which were inhibited, despite the existence of the concept of fair usage, because the contending parties could not establish what they thought fair usage might be. Last week RTE was prevented from broadcasting certain programmes because of the intervention of the James Joyce estate. The estate also engaged in a spectacularly mean action, to which I object very strongly. There was a proposal for a re-enactment and seminar in the Dublin Writers' Museum based onThe Cat and the Devil, a story written by James Joyce, in the form of a letter, for his grandson. The performance was to be freely provided for the children of Dublin. It was inhibited and prevented by the James Joyce estate. That was a despicable thing to do to disadvantaged children. It was particularly laughable when, if one is at all literate, one knows the tale of The Cat and the Devil was not the work of Joyce's imagination but a European folk tale which Joyce adapted in a few moments to entertain his grandson. The children of Dublin were denied an innocent afternoon's enjoyment because of the mean-mindedness and spite of someone who was placed by legislation in a position to act in a mean-minded and spiteful manner.
I hope that, for once in my life, I will be considerably briefer than my colleagues.
That would be the first time in the Senator's life.
We hope the Senator will be too.
The Senator should not be mean-minded and spiteful.
That is me.
This whole process is a profoundly disturbing exercise. It was referred to at length by the Minister of State's predecessor, Deputy Rabbitte, in May 1996. I do not want to cite Deputy Rabbitte approvingly but in his speech he quoted from a journal which deals the Internet calledWired.
Who are the men behind theWired?
Some of us might wish that Senator Norris was there permanently.
The author of this article said the push was to incorporate US copyright law into the Berne Convention, thus making US law in effect binding on the world. There is a fundamental problem in this.
The US has established a dominant position in a number of areas to do with "infotainment"– the information, entertainment, multi-media, audio-visual and Internet areas. It had that dominant position before in other areas but lost it to competitors. It lost it in the auto industry and for a long time in domestic electronics. Some American economists have identified this. They have realised that the best way to preserve their dominant position is by a combination of an absolute insistence on free trade, meaning that no one can develop alternatives behind trade barriers, which is how the Japanese, South Koreans, Taiwanese and Malaysians developed their automobile and electronics industries, and by introducing a grotesque distortion of what copyright means with a view to preserving the rights of those who gave them this dominant position in all areas of software far into the future. Because these measures were dressed up in language which appealed to the fashionable ideology of free trade throughout Europe, the EU rolled over and agreed without reservation to this. We are enshrining and protecting the dominance of those currently dominant. This is a total inversion of the free market.
Copyright is a dubious concept, intellectual property even more so Neither has any fundamental basis in law other than, as Lord Macauley said, as a tax on readers to enrich writers. What would happen if we extended the logic of this too far? Senator Quinn has been very successful. If someone copies his method of success but not his brand name that would be a breach of his copyright.
This is unrelated to the issue Senator Norris raised. There is a right for people not to have the value of their work undermined. There is no logic, however, to the suggestion that the defence of the value of persons' creative work should stretch for 70 years after their death. It did not exist previously. Copyright was originally a tool of censorship. It was used to determine what could be published. We are in grave danger of allowing it to become just that again. Listening to the experiences of Senator Norris confirms my suspicion that we risk suppressing genuine intellectual debate, research and innovation in the interests of preserving the dominance of those who have got a step ahead of everyone else.
Senator Quinn's amendment appeals to me because he says that it was I who inspired it. Apart from that it sets out to prevent copyright owners which are corporate entities enjoying the best of both worlds. The legislation states that the copyright owner of any work produced by an employee in the course of employment will be the employer. We have agreed to that. To say in the next section, however, that the duration of the copyright will not be based on the moment in which the owner of the copyright makes it public but on the lifetime of the author who has no rights to the copyright is ridiculous. There is only one reason for that – to further extend the safety and protection of the owner of the copyright when he or she is a corporate entity. It is not logical. This is a protectionist measure against competition and innovation for the benefit of corporations and employers. I have no objection to protecting the legitimate interests of either of those bodies, but if we live in a market economy it is the vibrancy of a competitive market that produces change, thus producing innovation and, when it works sensibly and intelligently, benefits for consumers.
When an employee of RTE produces a good television programme, RTE owns the copyright to it and the creative person who made it has no claim to it. RTE, however, now has a vested interest in the longevity of the person who made that programme. The longer that person lives, the longer will RTE's copyright extend. There is no sense in that. If you own the copyright then it should extend from the moment of publication, but 70 years is far too long.
I do not agree with some of the reasons which Senator Quinn used to support the amendment but at least it gets rid of this double cover for employers who own the copyright of their employees.
Unfortunately as I listen to the debate, I agree with many of the points made. I am waiting for an amendment tabled by Senator Quinn which I can consider favourably but I am not in a position to do that with this amendment. That is because of the obligations under which I find myself. I could have intervened in the debate and said that we are not going to get anywhere but it has been a useful debate because the thinking expressed could be useful in other fora.
I have no choice in that all the periods of duration are laid down by EU directives, particularly the EU Duration Directive. That was adopted by the EU in October 1993 and transposed into Irish legislation by the then Minister, Deputy Richard Bruton. I am not being critical of the Deputy because he had no choice.
He did have a choice. The Minister's advisers might know that several European countries derogated at least temporarily from this. Is there a possibility of our derogating retrospectively? It is a noxious position. Italy was one country of many which derogated temporarily.
My understanding is different from that of the Senator, but if I am not correct I will be glad to clarify the matter. A directive was in place before I came to this ministry. I am simply sharing with Senators my views and those of my officials.
It was considered that the provisions on duration of copyright in Chapter 3 already provide for the duration of such works because the terms of copyright protection in a work will be calculated in accordance with these provisions, irrespective of whether they are made by an employee in the course of the employment or whether the work is an adaptation. Accordingly, the addition of these proposed new sections would be unnecessary and could lead to confusion. In any event, it is not possible to give a blanket duration of 70 years after the date on which such works are completed or, as the case may be, 70 years after the death of the adapter as duration of copyright protection is calculated differently depending on the type of work concerned.
In relation to works such as literary and artistic works, EU and international law provide for mandatory duration periods expressed in terms of a life plus a period of years which varies depending on the work or material protected, which is 50 years or 70 years. In the case of the EU directive, these are specific mandatory periods not minima. For secondary copyrights, that is, related rights, for example, sound recordings, EU law sets specific periods of years for duration – generally 50 years.
My advice on the Senator's question is that there is no possibility of a derogation now. That is the clear-cut position. I am more than happy to accept or consider amendments but I will not be dishonest, thank Senators for their contributions and say I will consider a matter unless it is achievable. Perhaps there may have been a possibility of a derogation and an amendment at the time, but my legal advice is that there is no possibility now. There is no point saying otherwise.
The debate has been useful in terms of the need to discuss these matters at other fora. I have contributed to debates on patent and copyright law during various EU Presidencies. The points have been well made and I will ask my officials to note the views expressed on this aspect. Many sensible points were made but there is no point saying I will consider this amendment because my hands are tied and I have no choice. I assure Senators I will raise these important matters if I am involved or have the opportunity to do so at another level, and I will ask my officials to do so also.
As Senator Norris rightly said with regard to James Joyce, the EU directive brought Joyce back into copyright, and I understand the Senator's views on the matter. I must work with the restrictions imposed on me and also be straight with Members. While I appreciate what was said on this amendment, it would be meaningless if I accepted it.
I understand the Minister of State's position and sympathise with it. There is one further argument which he might bear in mind if making this type of case in a European forum – the rights of consumers. It is most unfair that the consumer has an unstable entity with which to deal. The consumer does not have 50 years or 70 years – it is 50 years after the death. That is a completely unstable entity and nobody can predict its duration. I can think of writers who died young. Some writers who contributed quite significantly died in their early 20s. That means the full period before copyright is free – 70 years. Francis Stuart, who is a distinguished novelist – I do not particularly care for his public persona as I understand it – is 97 or 98 years of age.
I think that is great.
So do I. I am in favour of the survival of the human race no matter how tendentious—
Not that Senator Norris would know much about—
We are straying from the amendment.
—the survival of the species.
I am doing my very best to survive. Here is somebody who is still alive and in his 90s. He will probably go on until he is 100 years of age, so the copyright duration would be 170 years. That is ridiculous and is absolute nonsense.
I appreciate the Minister's efforts to consider these amendments. He said he had various obligations and no choice in many matters because it has been laid down by EU directives dating back to 1993. Will the Minister outline some of the directives which limit our control? If we are to pass amendments because we do not have the freedom to do otherwise, it would be helpful to us to know rather than debate the illogicality of them. I did not consider the directives but it seems there is such illogicality in many of them that I would like us to be able to take steps to have them reconsidered. If the Minister has no choice but to adopt the European legislation, then we do not have the freedom to consider many of these matters. I would like to know where we stand in this regard.
At the time, we believed the duration period was too long but EU copyright law heavily influenced the author's right approach and specifically provided for 70 years. The directive in question is 93/98/EEC of 29 October 1993. I suggest to Members to contact my officials on any of these matters – I am sure many avail of this opportunity. They should feel free to do so. Although my officials are overburdened, they have been more than helpful to Members of this and the Lower House on these complex matters. The position is clear and Senators have accepted the position in which I find myself, and there my case rests.
Section 24(1) states: "The copyright in a literary, dramatic, musical or artistic work, or an original database shall expire 70 years after the death of the author .". Section 308 refers to the database right – I know there is an attempt to make a distinction here – and provides that the database right shall expire 15 years from the end of the calendar year in which the making of the database was completed. There is supposed to be a difference between the database right and an original database but if one reads the definitions, the definition of an original database states that "original database" means a database in any form which by reason of the selection or arrangement of its contents constitutes the original intellectual creation of the author.
Section 304 reads, ".in a database where there has been substantial investment in obtaining, verifying or presenting the contents . ". I am at a loss to understand the difference between a substantial investment in obtaining, verifying or presenting the contents and the definition which states, "which by reason of the selection or arrangement of its contents constitutes the original intellectual creation". If there is a substantial investment in obtaining, verifying or presenting, there must be some original intellectual creation.
My first question is whether there is a possibility of making a legal distinction between a database, as covered by Part V, and whether that legal distinction is possible to sustain. My second question is why it should be that an original database has a copyright of 70 years and a database for the purposes of Part V has a duration of 15 years. If the EU has produced a directive with two contradictory requirements, the Government should live with it and begin the process of having it changed. Notwithstanding the profoundly undemocratic nature of the EU, neither the Council of Ministers nor the Parliament can initiate legislation. Therefore, it is very difficult to initiate a process to change EU directives because the Commission consistently refuses to do so. This is a profound democratic deficit because even the European Commission can make major mistakes and can show a level of incompetence which no Irish Government has shown. The Irish Government is accountable to two Houses of the Oireachtas which tease out matters in considerable detail. If we are pretending there is a difference between an original database and a database as defined in Part V, then the Minister ought to explain what the real difference is. If there is a difference, it is impossible to argue in a rational way that one should have a copyright period of 70 years and the other a mere 15 years. My view is that 15 years is a perfectly reasonable period for anything to do with computer software or related issues and would make most databases out of date.
My second question relates to section 24(3)(a) which states, "where the pseudonym adopted by the author leaves no doubt as to his or her identity". Throughout the later Stages of the Bill there is a presumption that simply the assertion of a copyright is to be accepted as the position until proven differently. In other words, copyright is something which one must prove the person who claims it does not have, whereas in this subsection it appears the author must leave no doubt as to his or her identity. I believe this is a contradiction with presumption. I prefer the formulation in subsection (2)(a) because it leaves those who claim copyright with at least some requirement to prove their case. In section after section of the Bill there is a clear statement that the presumption is that people who claim copyright have it. I would like to know why there is a requirement for some level of proof here which is not required later on in the Bill.
I would like to reply to Senator Norris on the question of fair dealing. There are exceptions in favour of specified instances of fair dealing with copyright works including, for example, fair dealing for the purposes of criticism or review. However, our obligations under international law require that some exceptions be specific, limited and incapable of interfering significantly with the exercise of copyrights by rightsholders. These obligations would severely limit the scope to introduce a more flexible concept of "fair use", such as might address the behaviour of rightsholders perceived to be unreasonable in their exercise of their copyright rights. There is a concept of "fair use" which is, in fact, derived from the United States copyright law, where the tradition of legislative drafting and interpretation is different. There are many exceptions to deal with and we will be discussing that later.
Senator Ryan mentioned section 308 and we will come to that in due course. Only databases which are original by reason of the selection and arrangement of their content qualify for copyright. There are simple databases, for example, telephone books do not qualify but there may be a big investment in preparation given the level of database rights. Original databases must be protected on a similar basis to literary works under EU database directives, hence the 70 year duration. A lesser right is provided for more limited subjects or non-original databases such as telephone books, simple indexes, directories etc.
Subsection (3) is covered by provisions in the duration directive.
I have never been a great enthusiast for the European Union. My suspicions and wariness of its profoundly anti-democratic nature are now clear to me because it is entirely stupid to include a distinction such as this. I am not blaming the Minister or his officials. I am simply saying that to pretend that the author of a database has shown some original intellectual activity, on the one hand, and that that is more important and, therefore, gives 70 years' protection, than any scale of investment which leaves people with a 15 year investment is ridiculous. I am not the greatest enthusiast for investors in general.
The definition reads, ". a database in any form which by virtue of the selection or arrangement of its contents ." The contents are not even covered. Some clever guy manages to select and arrange. This is not necessarily computerised because the software is not covered. It is not the computer programme which is covered, it is the selection and arrangement. Therefore, someone selects and arranges a new database and he or she or his or her employer has copyright for 70 years. On the other hand, section 308 includes the phrase "substantial investment in obtaining". The other person who is protected for 70 years does not have to obtain the information. They might have all the information and produce a clever new way of verifying it. The person covered by the 70 year period does not have to verify it. The words used are "selection or arrangement". They can take it from existing information. For instance, they can take a database covered by section 308 15 years after it is first produced and be very clever in selecting new information from it or in organising it, and suddenly they have a 70 year protection. There is no logic to this.
I accept we are not masters of our own destiny. I believe that what we are discussing here is further evidence of what I believed all along, that the fact that only the Commission has the power of initiative is an affront to democracy. I am sure every other parliament in Europe identifies anomalies such as this. There is nothing we can do about this because an unelected body in Brussels can say "no". The European Parliament cannot take the initiative to do something about this matter.
I am intrigued that we now apparently have contradictory international obligations. The Minister said that the requirement that an author leave no doubt as to his or her identity is a requirement of a directive. On the other hand, the later presumption of ownership of copyright is also the consequence of a directive. In effect, the Minister is saying contradictions are now written into law because of contradictory international obligations. That does not make a lot of sense and is not a wonderful precedent.
I welcome that Senator Ryan questions the institutional basis of this important legislation. He questions the roles of the Commission and the European Parliament. He made a very valid point, as did Senator Quinn and others, that directives are laid down and we as Members of the Oireachtas must work on that basis. Members have made legitimate and sensible points which I know are relevant in the context of international fora. I assure the House that in my capacity as Minister of State, I will do my utmost to bring their views on these fundamental issues to the appropriate fora when this legislation is concluded. As the European Union enlarges, the Commission reforms and gets new leadership and the European Parliament gains more power, this adds to my view that there should be constant scrutiny and attention to the way we do things, including scrutiny of legislation which is in place.
I am here as Minister of State with responsibility for international trade. I deal with this issue at WTO level. I have ministerial responsibility in a number of areas and as Minister of State with responsibility for consumers I must be equally conscious of their needs. I have found conflicts between the trade and consumer agendas.
I share the view that there is a need to constantly question the institutions from where this and other legislation comes. I must inform Senators of the parameters and boundaries in which I can work, but equally I share the views of Senator Ryan and others in the context of the reform of institutions.
Returning to where we started, this amendment would have to be withdrawn.
I have been relatively quiet but I find frustrating our acceptance of the imposition of flaws and contradictions in our legislation by international agreements while the Minister of State says it is tough. It is not his fault but it is ridiculous that we must have inherently contradictory provisions in our legislation.
I have the same frustration. Can the Minister of State tell us whether this debate will be opened again at European level if we see anomalies or bad law which could and should be changed or is there nothing we can do about it because it is international or EU law? Are we wasting our time to a great extent discussing it? This is clearly frustrating and it happens on other occasions. In this case many of us were not aware of the details of European law and the Minister of State tells us we have no choice and are dealing with something which will not be reopened unless it comes up for debate at another stage.
I would not necessarily agree with the Senator that there is a blatant contradiction. I accept there are problems with which we need to deal. Many years have gone into preparing this legislation. I share the frustration of Members who bring up these legitimate points. I have had some experience of the realities of EU legislation as I attend three Councils of Ministers, the Internal Market Council, the Social Affairs Council on labour legislation and the Council on consumer legislation. A feature of these ministerial meetings is compromise in putting together legislation. We win in some cases and lose in others. The Government of the day would have fought the case the Senator is presenting.
Issues in relation to patents are currently being considered at seminars and conferences. A conference I attended recently, which involved members from the applicant countries, considered patents. There is no doubt that will feed back into the system. I would be glad to raise issues which arise here and I feel deserve to be raised with the Commission, and following the passage of this Bill would be the best time to do it.
I am considering the history of this process which is cumbersome. It has taken a long time to reach this point and we are now under pressure because we have been trying to deal with the new matters which need to be dealt with by copyright, particularly software, and introduce a comprehensive Bill. It has been a slow tedious process at national level and we have done our best to bring it before the House as early as possible. It would be unwise of me to start making commitments except to say I am happy, on conclusion of this Bill, to raise issues which have been raised by Senators in the course of this debate.
I move amendment No. 7:
In page 36, between lines 21 and 22, to insert the following new paragraph:
"(a)the producer of the film;"
The anomaly to which this amendment relates was brought to my attention by section 22(2) which states:
A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.
I am not concerned with duration as I was earlier, but with another more important topic, the ownership of copyright of a film and the related issue of what constitutes the copyright or copyrights in a film. Immensely complicated issues are involved and I am not sure they have all been addressed adequately. I am aware, after hearing the replies to my other amendments, that perhaps this is out of our hands and we cannot do anything about it. However I doubt that.
I was not reassured by our discussion on section 22 two weeks ago when I raised some of the issues in alluding to the total incompatibility of that section with section 25. Section 22, which concerns joint ownership, implies the authors of a film and, therefore, the first copyright owners are the producer and the principal director. Section 25 concerns duration and provides that the duration will be determined by the lives of different specified individuals. They are the principal director, the author of the screenplay, the author of the dialogue and the author of specially composed music. This section, in stark contrast to section 22, implies these four people are the joint authors of the film. One of the joint authors referred to in section 22 is not mentioned in section 25.
I find the phrase "principal director" a curious term. I hope I will not be told it is in European law and, therefore, we have no choice about it. There is almost a ring of pantomime rather than film-making about it. I do not believe the term is used much in film-making and I am not sure it responds to a need. Sometimes there is more than one director of a film but it is not too common. It usually happens when a person is sacked. Many hands are involved in screenplays and it would be more appropriate to use the word "principal" in that case rather than "principal director".
My amendment is a stalking-horse because its acceptance would not solve the problem of vagueness and possible confusion about what constitutes copyright in a film. It is vital we get this issue right even if only because of the importance of the film industry to Ireland as an art form and commercial medium.
I declare a small interest in that I am a star in an Irish film which was released last year entitled, "How to Cheat in the Leaving Cert". I played a big role which lasted 30 seconds to one minute where I had to put the ball into a hole on a golf course. Senator Coghlan will be pleased to know the ball appeared to go into the hole on the film. As a result of my involvement, I am familiar with what happens in the creation of a film. This experience informed my views of the copyright issues involved. A few young people of 19 and 20 years of age came to see me and said they wanted to make a film. They put the money together and made a successful film. I am sure their names will come up again in the future.
To understand the complexities involved, I will sketch the process I learned about how films are made. The first stage in the creation of a film is the basic concept or idea. It is important to realise that copyright is not created at that point because there is no copyright in ideas, only in words which are realised to some extent. Although an idea for a film is not protected at the first stage, it is often at that stage that initial money is raised for its production. There is a fine art in pitching for money which is often done in a shorthand that is unique to the film business. Members may remember a film called "Jaws" of a few years ago about a shark attacking an American holiday resort. At the idea stage, film people referred to it in pitching terms as "Moby Dick meets an enemy of the people". Ingenious and creative as this type of shorthand may be it is not protected under copyright laws. When does copyright protection begin?
The next stage of creation may be what is called a treatment. A treatment is not a screenplay, which is something further down the line. A treatment is an extended description of an idea, but in most people's view it is a creative work rather than a creative idea. A treatment might be anything between four and 12 pages long and it summarises the words and form of the proposed film. There is a lot of content in a treatment. It is not just a synopsis of a story but an indication of how the film will look and feel. It will usually include names and descriptions of the characters in the film. Many films, although not all, have treatments. There is no doubt among film people that while one can steal an idea, one cannot steal a treatment. A treatment is enough of a work in its own right to merit protection as an intellectual property. The appropriate form of protection is copyright.
The next stage after treatment is the screenplay, which is more familiar to people outside the film industry. A screenplay is not much different from the script of a stage play if one allows for the technical differences between the two. A screenplay will include a description of every moment of the film, any dialogue spoken by the characters and the wording of any narration heard on the soundtrack. A screenplay is a detailed creation and a work in its own right, although its purpose is to act as a blueprint for making the film. Just as with the scripts of stage or radio plays, screenplays are often published in print and read and studied by film buffs. A screenplay is worthy of protection in its own right in advance of the film being made and even after the film is made.
I mentioned that the screenplay will include the dialogue of the film. The dialogue is usually written at the same time as the screenplay by the author or the author of the screenplay. Joint authorship is common with screenplays and one of the joint authors is often the director of the film. It is not uncommon for a specialist dialogue writer to be called in either to write some of the dialogue or revise some or all of it. In such a case, it would be more appropriate to refer to the person as the joint author of the screenplay rather than the author of the dialogue.
Dialogue is an integral part of the screenplay. If it happens that a writer is concerned only with the dialogue, it is not normally regarded as a totally separate creation. It would not normally be considered that a writer of dialogue had created a free standing work in the sense that an author or joint authors of a screenplay would be considered to have done so.
An immediate step before making the film is the production of a shooting script. Most of this was unknown to me until I got involved last year. However, in contrast to the screenplay, the shooting script is a purely technical device. It is a mechanical working out of the screenplay. It is not considered by anybody to be a separate work. However, there are circumstances in which the distinction between a screenplay and a shooting script may become blurred. There may be a vagueness which is not easy to identify.
The film is then made and directed by the director, photographed by the director of photography and overseen, as the process has been throughout, by a producer and an entire fleet of associate producers, deputy producers and executive producers. Perhaps the term "principal producer" might be of use. In addition, a large number of people are involved in details, some of whom may be worthy of protection in their own right. The set and costume designers create work which is distinct from the film and is capable of being protected.
The film then moves into post-production which involves a number of technical and creative stages. The creative stages include the writing and performance of specially composed music or the adaptation of existing music. They also include the editing of the film. Editing has an important place in the film. I have not had the patience to watch entire Oscar awards ceremonies, but one gets an idea from them of the number of people involved in films and identified as having played a part. Sometimes the editing is done by the director or under his close supervision and, at other times, the editor will have a freer hand. Editing is a crucially creative process. The result is that it is not as free standing as a screenlay. The edited product is the film and the editing is indistinguishable from the finished film.
This is an unprecedented amalgam of creative activity. Much of that activity gives rise to copyright material and we must consider how we will treat that in legislation. There are a number of separate copyrights involved, although they are not all distinct and that gives rise to problems. The treatment and the screenplay are blueprints for a later creation. They are works which are capable of protection in themselves and as parts of a later work that is created. In other words, I suggest the writer of a screenplay has a right to ownership in the screenplay and a partial right to ownership in the overall film. On the other hand, the composer of the music is more separate. We can usefully consider that the music created for a film, however important its contribution is to the overall effect, is a separate copyright altogether. I suggest the composer has ownership of the copyright of the music but no part in the ownership of the copyright in the film. That is my view, but I would not be sure. I would make an exception to this in a case where the film is a musical and the music is integral to the film, but in most other cases it is only incidental and an addition to it.
Who are the other candidates for ownership? The producer was mentioned in section 22, but he had disappeared by section 25. It would be in line with industry practice to include the producer, who is the subject of my amendment, because, in a sense, he is usually the employer of all the others. However, I do not think we want to bring section 23 back into the frame because we spent long enough on it. In my view two other contributors should be considered joint creators of the film, the director of photography and the editor. This gives a total of six – the writer of the treatment, the writer of the screenplay, the director, the director of photography, the editor and the producer. Luckily we do not have to address the issue of how much of the cake each person gets, which is a matter for commercial negotiations when the film is being put together. Many people in the film business make a living from carrying out those very negotiations.
However, if we persist in the idea that the duration of a copyright depends on the lifetime of the creators, then we must take a view as to who those creators are. The Bill before us takes such a view and I believe that it is wrong. However, if we must take a view, we should at least get it right. If, as I prefer, we abandon the lifetime concept and stop the clock, so to speak, a standard number of years after the work has been created and the copyright has been created, we can bypass this complication. The Minister says we cannot do that as the matter is not in our hands. I must confess it may even be more complicated than that. Just as I hinted that special circumstances would apply to a musical that would not apply to another film, there are some films where a contribution by one person or creative discipline is enough to merit inclusion in the ownership of that film, for example, special effects or the artist who draws the characters in an animation film.
An appalling vista opens for us. If we are to be faithful to the notion of defining the length of a film's copyright in terms of the lifetimes of its creators, then to be correct and consistent we need to specify different types of films in which the concurrence of ownership would be distributed differently. If it were a matter that some of these creators are more important in some cases than others, there would be no problem, but that is not the way it is. In some cases, certain people will not be involved. It would be the height of absurdity to pin the length of copyright to their lifetimes if they were not involved. That, however, is the kind of difficulty created by the approach in the Bill. The matter has not been covered in the Bill. I do not know if it is the case that the producer has been left out and putting him in might help, because it is much more involved than that. We have not got it right.
This is an important section because the film industry will be important in Ireland in the future. It is the talent and wealth of skills among some of the people involved in the film industry that gives us an opportunity to make a success of the it in Ireland. It is crucial to get it right. I suggest we return to the drawing board.
Ever since I lost out to Meryl Streep for the lead role in "The Bridges of Madison County", I feel my enthusiasm for films has waned a little. I realise having listened to Senator Quinn the amount he learned in the making of that short film in which he had a 30 second role, whereas "Educating Rita" was made in our house and all I learned was how nice Michael Caine was through having coffee with him most of the time.
This is a really complicated section. There has already been a great deal of trouble in this country with regard to the ownership of screenplays. Perhaps Senator Quinn's final words are right, that the most important thing to do with this section is to return to the drawing board, because it is hard to see why these four people have been singled out. I do not think that having more than one director is that unusual. I cannot remember the names of directors who co-operate but I seem to remember there are two brothers who co-operate quite frequently. There are others who co-operate and to credit one name will create a difficulty. Leaving out the producer does not seem right. I remember from "Educating Rita" that the continuity girl's work seemed to be absolutely vital because if one got lost in the trap of what was going on the film would be quite impossible. Could we suggest that it be looked at again, in view of Senator Quinn's eloquence in describing the great difficulties regarding the ownership of film?
Film making is obviously addictive. I did not realise that Senator Quinn was such an accomplished actor, although I did witness him getting the ball in the hole on a recent occasion. I can vouch for the fact that he is a gifted storyteller. He has written a bookCrowning the Customer, but I did not know about his role in film making until today.
In any event, he has tabled a worthwhile amendment because, as he has rightly pointed out, a film may well grow out of an idea but the idea may be the producer's and a producer is essential to making a film. I suggest that the producer's involvement is an integral part of the process. I do not see how in specifying those involved, we can omit the producer from the section.
Senator Quinn made some worthwhile points with regard to the incidental music in a film and the need for a separate copyright for it, and also that a musical was different again. For those reasons I wholeheartedly support this amendment.
I thank Senators for their contributions and I thank Senator Quinn for taking us through the workings of a film. I will respond to Senator Quinn as honestly as I can. He is right about the measuring of lives that may be used in determining the duration of the copyright in a film and they are set out in the European Union Copyright Duration Directive, but it does not permit the inclusion of producers in the category. His second point on whether it is practical is very relevant because producers are often limited companies which will not have natural life spans, which is a necessary characteristic for inclusion. For example, the producer may be a company not a person, unlike a director or a principal director, and, therefore, it would have no life measure. That is my direct response to the inclusion of a film producer on the list.
Senator Quinn mentioned the various stages of film making. He correctly pointed out that there are many ownership and copyright interests. It is a principle of copyright that different distinct works, whether they are literary, musical or other, are incorporated in a composite work such as a film. Those works have separate copyright protection independent of the copyright in the composite work itself. There are clear copyright protections for the various types of work. In the case of films the arrangements for mutual exploitation of these rights is usually managed in accordance with private contracts between the parties concerned. It is an efficient arrangement.
I assure Senator Quinn that I am anxious to incorporate forthcoming amendments. However, I oppose this amendment because if the term "producer" is inserted and he accepts that the producer is a company in most cases, not a person, then our legal experts will be left with the problem of trying to measure a life span. I appreciate the value of this debate and its content but on practical grounds I cannot accept this amendment.
Is the amendment being pressed?
If the term "producer" presents such a big problem then how can we refer to it in section 22(2)? "Producer" is mentioned in that subsection but it disappears when we turn to the next page.
He has been written out of the script.
I do not understand how it can be mentioned in one section and not in another. The Minister of State is clearly frustrated by my amendment. I am frustrated by the Minister of State's effort to solve my problem. He does not solve it by referring to the length of life after the death of the copyright holder. If that is written in stone in EU regulations then the solution would be to provide that, with regard to the producer, even if that is a company, it is the length of time after the copyright is established, in other words, after the film has been made. That would solve my problem.
Perhaps the Minister will tell me how he can refer to a producer on one page and not on another if the word "producer" presents such great difficulties?
They are two different sections. In this case we are talking about duration of copyright in films while in the other we are talking about works of joint authorship. The real issue is the specific reference in inserting the term "producer" and then trying to measure a natural life span. This section involves the measure of a natural life span. Notwithstanding the reference to a producer in another category we must deal in legal terms with a life span. In this case, as is the case in most instances, the producer will be a company. There is a legal problem in measuring a company's life span.
I accept the Minister's difficulty with regard to a life span. The truth is that the producer is a limited company in a minority of cases. We might resolve this problem by inserting the line "the producer, save in the case where the producer is a limited company". In the vast majority of films the producer is a named individual. For instance, take all those Anthony Havelock-Allen films in which Senator Tom Fitzgerald and myself starred. The Senator has probably been an extra in many films. If it is a limited company then the Minister of State can insert an exception for a limited company.
I am keen to accommodate Members. They have made valid points. However, I must go back to the point of the areas within which I can work in and the differences between sections 22 and 25. With regard to Senator Coghlan's remarks, I cannot consider putting in language that could be wrongly interpreted or lead to ambiguityvis-à-vis those who would be interpreting it. This is an issue of duration alone. It does not affect the substantive right of authors. We have a specific list to work with.
I am interested in listening to what Members have to say. Senator Quinn correctly pointed out that principal director is mentioned as one of the measuring lives in Article 2 of the duration directive. We followed that directive. It is a combination of the list with which we have to work. With regard to the point made about a producer being a company, we could find ourselves in difficulty when we have to deal with issues of duration.
We accept what is meant by the author of a screenplay but he or she may not be, and invariably is not, the author of the idea. That would better relate to the producer. For that reason the Minister of State should accept the term "the producer" as part of this section with the exception regarding limited companies. I press the Minister to accept this amendment on those terms.
As Senator Coghlan said, I too was a famous star at one time. I starred in "Ryan's Daughter" and many other productions. However, I will outline the background of my limited knowledge of the film industry. The producer of "Ryan's Daughter" was Anthony Havelock-Allen but he was there in name only because he invested a small amount of money in the film on behalf of Faraway Productions. That company was the real producer of the film. Hundreds of people were involved in the production and Anthony Havelock-Allen was appointed by that company to act as producer and manager while the film was being made.
On the four occasions that I was asked to star in films I signed a document stating that I forfeited all my rights, which is still intact to the present day. On another occasion I was picked to take part in an advertisement that was being filmed in Dingle because I was the right man in the right place. They wanted to pay me for my part but I said there was no payment involved. They asked me to accept £10 for my trouble and to sign a document. That was that.
I agree with the Minister's comments. There are occasions when a producer is an individual but in 90 per cent of the cases the film producer is a company of shareholders backed by a major film company. They take on different names. I believe that Faraway Productions was part of Metro-Goldwyn-Meyer and was created for the making of "Ryan's Daughter". The Minister of State is correct on this issue.
Those involved in the making of films sign over their rights to that film. In some cases an actor can demand royalties from a film for a period of years. The television rights to "Ryan's Daughter", sold when the film was made, stipu lated that it could not be broadcast on television for eight years after its launch. This is a very complex area which includes directors and others. The author of a book will make an arrangement with a film production company under which he or she sells some or all of the rights.
I included the word "producer" in this amendment as a stalking horse and my heart is not behind solving this issue by including that word. However, I wished to draw attention to the complex nature of this matter and the Minister of State should re-examine it. I could make a strong case for including six people but he has decided to select four. The film industry is important to Ireland and it would be wrong to assume that the inclusion of four names would be the end of the matter. I will not press the amendment but the Minister of State should reconsider the issue. I have gone to some pains to draw attention to its difficult nature. The Minister of State's officials have put considerable work into this to ensure they solve the difficulty but I do not believe they have done so. It is worth looking at this again and I would welcome a commitment from the Minister of State to reconsider his position on this issue.
I thank Senators for their comments. I am sorry that Senator Tom Fitzgerald is not on the list as his county has produced great films. I have no choice but to work with the four people listed in Article 2 of the directive. These persons are mentioned purely for the purpose of measuring lives so the additional producer is not permitted in this regard under the directive. I explained the difficulty with regard to the producer and the company, however, I will ask my officials to examine the legitimate issues raised by Senator Quinn.
When introducing copyright legislation we are moving into new territory and the Senator rightly pointed out that events such as the Oscars highlight the various elements and personalities involved in the making of a film. However, this legislation must be tight and workable. As Minister of State I am involved in international trade and economic matters and our film industry will benefit from solid legislation. I want to get this right but I am happy to ask my officials to examine the issues raised by the Senator.
Amendments Nos. 9 to 12, inclusive, form a composite proposal with amendment No. 8 and amendment No. 13 is related. Amendments Nos. 8 to 13, inclusive, may be discussed together by agreement.
A Chathaoirligh, I believe that amendment No. 13 involves a separate issue. It may be related but I would like to discuss it separately.
We will take amendment No. 13 separately and will discuss amendments Nos. 8 to 12, inclusive, together.
I move amendment No. 8:
In page 36, paragraph (a), line 35, to delete "50" and substitute "70".
These amendments are tabled in the interests of consistency. There are serious inconsistencies in the legislation on two counts. First, the duration of copyright in broadcasts, cable programmes and typographical arrangements is determined from the date of creation, without reference to the lifetime of the author. I have said that we should jettison the use of the author's lifetime to determine this issue but that would mean bringing every work protected by copyright into line with how matters are handled in these sections. On the other hand, if we are going to use the author's lifetime for some works then, surely, we must use it for all. I can think of no reason why we should use the lifetime plus 70 years in the case of books, films and so on but not use it in the case of these three categories of work.
There is no suggestion that these entities are not also created by mortals who will have a lifetime similar to those who write books, make films and so on, despite the fact that limited companies may be involved in some cases. If there is no reason to justify the different treatment then the treatment should not be different. That does not seem too difficult or obscure a principle to adopt. Would the Minister of State explain the possible nature of such a difference? He may state that it involves the directive but I doubt if that applies in this case. If, for instance, it is claimed that it is impractical to ascertain the identity of the author in these cases, then, from what I said about another case, difficulties exist in determining the authorship of films. That may not be the reason and I look forward to the Minister of State's reply.
The second way in which these sections are inconsistent is in the use of the term "50 years". It is one matter to stipulate that the term is 50 years in some cases and in different circumstances that it could be reckoned in terms of the creator's lifetime. However, it is another matter to say that the period will be 50 years in some cases and 70 years in others, yet that is what is occurring in these sections. The creators of these works are being discriminated against in two different ways. First, the length of their lifetimes is not being taken into consideration and, second, the figure specified for the duration is 50 years rather than the 70 years which applies in other cases. This means that there is a double discrimination for or against which is remarkable. I can think of no reason for such a difference in treatment. I look forward to the Minister of State's response but I am a little fearful that he is going to say that this is due to the directive.
The double inconsistency is particularly remarkable when one contrasts broadcasts and films. They are similar activities, although not all broadcasts are similar to films. Some broadcasts are broadcasts of films but this would not create a problem because, presumably, the film copyright would apply, or would it? Let us assume that it would. What about a broadcast which is film-like but definitely not a film? I am not talking about a broadcaster showing a film which can be seen in the cinema, but one involving a drama produced specifically and exclusively for television. Many of these series have very high production values. I am sure the Minister of State can readily think of recent examples. British companies are very good at producing them and I like to think it is an area to which we could make a contribution. There have been some success stories in that regard.
Such drama series have production values comparable to those of a film and budgets which would not disgrace the making of a film. There is also the same amalgam of talents of which I spoke earlier. To the person watching such a work on television, there is no discernible difference between such a drama series and a film, yet the treatment of the two types of production in terms of copyright in the scheme of the Bill is radically different. I find it difficult to understand how that can be justified. This is a matter on which I seek enlightenment and I am sure the Minister of State will be happy to provide me with it.
Most of the matters referred to in the Bill are familiar to me and I have no difficulty in envisaging them and their operation. I know what a film, a literary work and a computer programme are, although I have difficulty in seeing the last from the perspective from which it is seen in the Bill. I also know what broadcast and cable transmissions are. However, I have no idea what is meant by a typographical arrangement of a published edition. Perhaps these words mean something or they are included in the directive and cannot be changed. Neither do I understand why it is referred to in many places throughout the Bill. What is it and why is it so important that it must be repeatedly singled out in the Bill? I would have thought that, in this modern age, we would have devoted our valuable time to passing laws which protect ownership of the arrangement of web pages and other such trendy matters rather than this somewhat arcane entity of which I doubt the Minister of State heard before he became immersed in the preparation of the Bill. I await enlightenment in this regard.
This is a large Bill which we are taking a long time to debate but there are some aspects of it which catch my attention. I ask myself how they were included and why we concentrate on such terms but do not mention others which, if we do not concentrate on them, will cause us to revisit the Bill, something I hope we do not have to do. I know the Minister of State will do all he can to ensure that this is such a perfect Bill that it will not be revisited in his or my lifetime. Let us ensure that we get it right to begin with.
Senator Quinn has a point. I am sure the Minister of State will say that the time limits on copyright are laid down in various directives, agreements and treaties. However, that does not excuse us from attempting to make clear what we mean in the Bill and, at least, to make sense. The definition of a film in the definition section is "a fixation on any medium from which a moving image may, by any means, be produced, perceived or communicated through a device .". It is a wonderfully broad definition extending well beyond the idea of the movies and the cinema to include video and DVD.
The definition of a broadcast is "a transmission by wireless means, including by terrestrial or satellite means, for lawful direct public reception or for presentation to members of the public of sounds, images or data or any combination of sounds, images or data .".
It appears to me that, if a film is broadcast only, it only has a copyright of 50 years, although I am not sure about this. The Bill makes the reasonable provision that the copyright for a broadcast takes effect from the time the broadcast is first lawfully transmitted. Irrespective of whether the stars or producer of "Glenroe" live or die, it will not affect the duration of copyright. However, a second rate, space filling movie, which RTE and other television channels have a habit of showing during the summer, has its copyright extended for 70 years after the death of the director, the author of the screenplay or dialogue and the author of the music, most of whom are probably second rate given the appalling quality of many of the films. The intent in dealing with broadcasts is contradicted by the definitions and we could do with greater clarity in that regard. The same question arises in the case of a sound recording. I cannot figure out what a sound recording would be which did not incorporate music or speech or something similar, although this may be covered somewhere else.
I would not like the Minister of State to say that these matters are covered by directives, but to say whether he accepts there is a fuzziness in making a distinction between them. The definition of a broadcast means it is copyrighted even if no one ever receives it. I am intrigued at the idea of a broadcast which no one ever receives being copyrighted. The Bill does not state that anyone must receive the broadcast. It is broadcast for lawful direct public reception or for presentation to members of the public but there is nothing to say it must be received. This means there could be copyright on something which is never received and which does not have to be received but which is not a film. I would like to know what the Minister of State means by a broadcast which is not a film given the generality of the definition in the Bill of film.
The more I read the Bill and the more I think about it, the more I believe we are entering a territory where matters are being put together not because they are logical, reasonable or sensible but because "Big Brother" in Washington expects us to do it, and that troubles me.
Some of the Senators have predicted some of what I will say because they have come to understand my position on many of these matters. I will address the group of amendments because they deal with the duration of copyright. As Senators predicted, this area is effectively governed by the European Union international law. Article 3 of the EU directive on the duration of copyright enjoins 50 year duration periods in respect of sound recordings, broadcasts and cable programmes, so I am not in a position to accept amendments Nos. 8, 9, 10 and 11. Article 4 of the same directive enjoins a set duration period of 25 years for the endurance of rights in previously unpublished works dating from the time at which they are lawfully made available to the public, so I must also decline to accept amendment No. 13.
With regard to amendment No. 12, Article 12 of the Agreement on the Trade Related Aspects of Intellectual Property Rights, known as the TRIPs agreement, sets a residual minimum period of protection of 50 years for most categories of copyright work. This requirement is the basis for the 50 year duration assigned to copyright in typographical arrangements of published editions. I consider this period more than sufficient for a category of protection which generally works only to give a degree of protection to published editions of works already out of copyright in the usual sense.
Successive Governments have taken the view that duration periods provided for copyright protection by EU international law are often longer than might be desirable in terms of achieving the best balance between the rights of the holders of copyright and those of the users of copyright materials. I made that point earlier in the debate. However, these periods represent part of the complex balance of EU international copyright law and it is a system of law which yields substantial advantages to our economy as well as to the global economy in general. We may not obtain everything we desire in respect of these matters because there is always the question of balance to be considered.
Under the directive, artistic, literary, dramatic musical works have primary copyrights with a duration measurement of the life span of the author plus 70 years. For historical reasons, in respect of other rights such as sound recordings, regarded as neighbouring rights, which do not have individual creators in general, the directive requires a 50 year set period of duration. This distinction derives from the historical development of international copyright law and it is reflected in the mandatory terms of the directive. Historically, films have primary copyright. Perhaps that should not be the case but it is the position as it currently stands under EU and international law.
Senators Quinn and Ryan acknowledged that there are restrictions on what I can and cannot do. With regard to typographical arrangements, the typographical layout – use and design of typeface for use in a book, for example – enjoys a limited copyright for many of the same reasons non-original databases enjoy limited database rights. There may be, for example, considerable investment in producing a new edition of a literary work which is out of copyright. In such cases, the only protection for this investment will attach to the new typographical arrangement used in the new edition.
The Minister of State referred to the "typographical arrangement of a published edition". Are those the words used in the EU directive or did his officials suggest their use? The words to which I refer are arcane and would be more apt in legislation dating from the end of the 19th as opposed to the 20th century.
This relates to the possible difference between definitions in respect of films and broadcasting. My position is that these are different things and I see no difficulty in this instance.
In the Bill the term "computer generated" is defined as meaning a work generated by computer in circumstances where the author of the work is not an individual. At least two full length movies have appeared in our cinemas in the past two years which were computer generated. Does section 30 or section 25 apply to such movies which were manifestly computer generated and in respect of which it is not possible to identify an individual author? If section 30 applies, the copyright will expire after the work is made lawfully available. If section 25 applies, the duration of copyright will depend on the longevity of a collection of individuals.
I support Senator Ryan's comments. It seems that there is an anomaly in this section. The EU directive states that we should take one course of action or another and in this section we appear to be breaking its terms in one way or another. Perhaps the difficulty has already been identified in Europe, however, and our hands have already been tied by means of the directive. I await the Minister of State's reply.
The Senators have raised an interesting matter. Under the section, "computer generated" would mean that there would be an automatic element involved in the production process. In other words, a computer would generate work in an automatic way. The films to which Senator Ryan referred, I believe I am familiar with them, would have involved tight directorial control. I suggest that is the distinction which we may need to clarify.
We must be careful because the suggestion that something which is created automatically could be copyrighted is a peculiar new concept. We are supposed to be protecting creativity. However ridiculous it may be, we have taken steps to protect computer software by stating that it is literary work. We are now stating that things which are automatically created by computer and in which there is no creative human interaction can be copyrighted. That cannot be the case. We will enter dodgy territory if we allow things that are generated automatically to be copyrighted because we will not be protecting—
Someone must be responsible for starting the process because it will not commence without a human input.
This is not the first occasion on which a provision of this sort does not make sense to me. This Bill is sometimes not as technologically neutral as the Minister of State suggests. I could understand it if the term "computer generated" was defined in a way which identified authorship because I have already argued with the Minister of State that the definition of the term "artistic work" is woefully inadequate. I discussed this matter with an artist to whom I referred on Second Stage who was somewhat perturbed about the narrowness of the definition.
If something is generated automatically it should not be copyrighted. If it is not generated automatically and it is covered by the definition, either section 25 or section 30 will apply. Clarification is required and perhaps an amendment could be introduced on Report Stage to state that it does not apply to films which are computer generated.
If clarification is needed on foot of this debate, I will ensure that it is obtained. The point I am trying to make is that there would obviously be some person involved in commencing the process to which the Senator referred. It must be remembered that investment would also be required. Therefore, both creativity and investment would be needed to set up a computer to generate what we are, in effect, describing as "artistic work". I accept that the term "automatic" has a non-artistic connotation. However, the process is not wholly automatic in that there is a creative interaction at the outset.
I am sure the Senator will accept that there are many young creative people who are involved in the production of computer generated work. I accept the point he raised in respect of patents on Second Stage and that is a matter for further debate. The kind of work we are discussing will become much more common in the future. We have tried to use language in the Bill that will give us flexibility to deal with new concepts, such as computer generated work, which will require protection under copyright. For example, a film, while not itself a computer generated work, may contain such work within it.
This new area warrants special attention. If clarification is needed on foot of the debate I will obtain it. Senator Ryan drew a distinction between computer generated work and areas where they may be tighter directorial involvement and I will ask my officials to consider that. This is a new area that I would like protected under this Bill.
At least we agree on that. I would also like it to be protected, but the problem is that the definition of "computer generated" specifically excludes creative people because it states "where the author of the work is not an individual". If there were two authors, it appears that work could not be defined as being computer-generated because the definition states "where the author . is not an individual". I am prepared to accept peculiar wording in legal definitions, but a group cannot be an individual and I do not believe that is what the definition means.
The definition of "computer generated" needs to be revisited and, if necessary, I shall endeavour to do that before Report Stage. There is also a contradiction between sections 25 and 30. The Minister and his officials could come up with a better definition, but I have no doubt the present position, particularly the definition of "artistic work" in the light of the very narrow definition of "computer-generated", is inadequate.
I thank the Senator for raising this matter. This is a very technical area. The Senator is correct in saying that the person both of us are trying to protect is the person or persons who set up such computer programmes. That is our motivation.
I move amendment No. 12a.:
In page 37, before section 32, to insert the following new section:
"32.–Where an adaptation of a work is lawfully created, whether by the original author or otherwise, copyright in the adaptation shall subsist separately from that in the original work and shall expire 70 years after the death of the adapter.".
This amendment was taken with amendment No. 6a, but I am not sure if was discussed during the debate on the earlier amendment. My intention in tabling this amendment is to establish clearly that an adaptation is more than the exercise of a right of ownership in a copyright work. I do not believe we discussed that point when we dealt with amendment No. 6a. I did not intend to discuss that point during the debate on the earlier amendment and, with the Leas-Cathaoirleach's permission, I will elaborate briefly on it.
I appreciate that. As we had a detailed discussion on the earlier amendment, we will have a limited discussion on this amendment.
I will attempt to limit the discussion. The reason for tabling this amendment is to establish that an adaptation is more than the exercise of a right of ownership in a copyright work. In addition to that, it involves the creation of a new work, not necessarily by the original author and, therefore, not necessarily in the first ownership of the original author. That is vital.
If someone is given the right to copy a work, nothing new is created. The copy of the work does not spawn anything new as far as the right to a copyright is concerned, but the position is different in the case of adaptations. This point can be illustrated if we were to envisage a person making an adaptation of a work that is out of copyright. If a person were to make a television adaptation of a novel by Tolstoy, nobody would be in any doubt that the adapter had created a work that fell to be protected by copyright. That is not to say that the protection for the adaptation would protect anyone else from making an independent adaptation, but it would prevent anybody using the first adaptation for any of the purposes for which people use adaptations.
We can carry this principle over to a work that is to be adapted that is still in copyright. In such a case the adapter would get a licence to adapt and to make use of that adaptation. From then on, the adapter would be on his or her own, in the sense that there would be a new property within the control of the adapter. This is an important point because we need to make clear precisely whose would be the ownership. To avoid doubt it is important to specify that the adaptation would belong to the adapter, once it has been made properly under licence. The original author would have no power to control the use of such an adaptation and no right to profit from it beyond the profit he or she would have made from the original licence to adapt. That is an important point.
Another important point relates to the length of the copyright. The copyright in such an adaptation could continue after the copyright in the original work has lapsed. That is right and proper, but it can only happen if such an adaptation is considered a separate work that would create its own copyright protection. This is an important issue on which I did not comment on when we discussed amendment No. 6a.
The Minister may not have enough time to consider this issue now, but it is worth considering. The point I make relates to the case of a work, such as a work by Trollope or Dickens, that has gone out of copyright and where somebody uses that work to create a new work. That new work is an adaptation of the original, but a good deal of effort, skill and talent has gone into the adaptation. The adapter has a right to create a copyright for that adaptation. Somebody else may do another adaptation of the work by Trollope or Dickens, but as long as he or she does not infringe the copyright of the first adapter, that adapter should have a right to a copyright.
I included the period of 70 years in the amendment because I assumed that period would be agreed by Members. This is a loophole in legislation that needs to be closed. I draw it to the Minister of State's attention in the hope that he will be of the same view.
We have covered some of this ground already. It is considered that the provision on duration of copyright in Chapter 3 already provides for the duration of such works because the term of copyright protection in a work would be calculated in accordance with these provisions, irrespective of whether they are made by an employee in the course of employment or whether the work is an adaptation. Accordingly, the addition of this proposed new section would be unnecessary and our concern would be that it could lead to confusion. In any event, it is not possible to give a blanket duration of 70 years after the day on which such works are completed or, as the case may be, "70 years after the death of the adapter", as the duration of copyright protection is calculated differently depending on the type of work concerned. An adaptation is not a category of work and there can be an adaptation in any category. In addition, measurement from the life of adapter is inconsistent with the duration directive.
The Senator raised this matter in another context. I will not accept his amendment, but I will consider the points he made with a view to seeing how best we can deal with them in the months ahead.
I hope the Minister will excuse me for appearing to be a little flippant, but I cannot resist it. I am worried about the copyright of the Bible. I have a suspicion it may be in copyright forever.
No, it is only for three score years and ten.
Unless we are all followers of Mithras at this stage, but I do not think God is dead. There is a question of authorship. I think the Koran is in a similar category, but I do not want to pursue this too far.
The section states "Where the term of copyright in a work is not calculated . and the work is not lawfully made available to the public within 70 years of its creation . ". Since it was not published, how do we know when it was created? As so many other terms are defined with such precision in the Bill, I am surprised that some effort was not made to define the word "creation", and this has nothing to do with God.
I did not realise God and creation would come into this although we need some sparkle in the debate. The section refers to this coming to light subsequently. I appreciate the Senator is making an academic point about the difference between creation and publication.
I move amendment No. 13:
In page 38, line 13, to delete "25" and substitute "10".
This amendment was originally grouped with amendments Nos. 8 to 12, inclusive, and the Minister of State's reply may be the same. It deals with the length of protection, which I wish to shorten. This section gives rights to someone who has found a long-lost work but who is not the author. We are creating a new copyright where the original one has lapsed. The question is whether a person in such a position should be entitled to any protection.
There is a radical difference between ownership of a work and finding it. In the other cases we have discussed it is clear that property interests arise because the person we call the owner has created a work or commissioned it, in the case of work done by an employee. This seems straightforward and justifiable as the person concerned has brought the work into existence or paid someone else to do so. In either case the person concerned deserves his or her due reward in the form of copyright protection.
However, in works of the kind dealt with in this section, we are rewarding something entirely different. We seem to be rewarding the act of finding. The person concerned has found the work – not created it, partially or otherwise, or commissioned it in any way. They have instead, by virtue of some mysterious process, found it. Should a person in such a position be rewarded? I doubt it. Let us operate on the principle of "finders keepers"– what one finds, one keeps and one is entitled to use. However, we are going further than that – we are saying that what one finds, one keeps and one has the right to use it exclusively. I am hesitant about operating on that scale of generosity.
However, that is far from being the limit of our generosity. We are giving such a person exclusive rights for 25 years, which seems excessive. I should be grateful it is not for a period of 70 years or 70 years after the death of the finder. I am duly grateful. The fact that it is not 50 years, 70 years or 70 years after the death of the finder demonstrates the recognition of the difference between the creator and the finder. This section acknowledges that difference by the length of the term. The principle of different treatment is accepted. We should take that principle and extend it. If we must reward the finder by giving him or her exclusive rights, a period of 25 years is too long. It does not represent an appropriate reward or a fair difference between the art of creating and the act of finding.
I must declare an interest because, as Senator Coghlan said, I am the author of a book. I put a considerable amount of work into writing that book, apart from the work I put into gaining the experience which is the background to it. I hope the Minister of State will not be offended to hear I am a little miffed to find that after all my work on that book, if I had picked it from a skip in the street, I would have received a scale of reward which is not that different to what I received from writing it. In most cases, the biggest profit from the exploitation of a copyright is in the early years. I wrote my book nine years ago and I am happy to say it is still selling well. However, I do not expect it to be selling as well after 25 years, which is the term of copyright to which I would be entitled had I picked it from a skip. For many authors, it is the early years following publication which count, so to award 25 years' copyright puts the finder on a par with the creator. As a creator, I resent that greatly.
I apologise for showing such emotion – perhaps we should adjourn while I compose myself. It is not right that someone who finds a work in a skip should get 25 years' copyright. I know the Minister has replied to similar amendments and I hope he will not give the same answer. However, I have a sense ofdéjà vu. A shorter period would be more appropriate – I would prefer five years, but ten years is a reasonable comprise. This matter was touched upon in relation to amendments Nos. 8 to 12. If it is part of the Bill because of an EU directive perhaps I am wasting my breath. However, there is a case to be made and I hope it will be considered.
I would also like to know the rationale behind this section. On the face of it, it deals with a finder's right. However, if the finder did not make the work available, it might never become known and no one would benefit. I disagree with Senator Quinn. Perhaps the period should be extended beyond 25 years. If the person is a cheat, he or she could claim it as their own and obtain greater rights than those given by the 70 years provision. What is the rationale of the section – does it enforce an EU directive?
I would like to accept some of the Senators' amendments. However, because the Bill is so long, it may be some time before I do that. As Senators Quinn and Coghlan predicted correctly, this section deals with Article 4 of the directive which enjoins a set duration period of 25 years for the endurance of rights in previously unpublished works, dating from the time at which they are lawfully made available to the public. This is why I have a problem in accommodating Senators who made genuine points. As Senator Coghlan said, the section deals with the finder's right and gives him or her the incentive to make the find available to the public. That is the logic behind the section.
For the past few hours, Senators have raised important points relating to the Bill. I do not want to stop the debate because it is useful in examining how we operate at EU level and many useful suggestions have been made. However, my job is to present the Bill to the House and to ask Senators to agree with me on various aspects of it. We have a long way to go before we conclude the debate. We will probably find ourselves agreeing on a number of issues later in the Bill but that is not happening right now because I am not in a position to agree to these amendments.
I appreciate that the Minister of State is trying to be helpful but, as he said, we are not getting there. Does this apply to a case where the finder obtains a work of which the authorship is known, for example, a work known to be by William Shakespeare?
My advice is that it applies whether the author is known or unknown.
If it does not matter whether the author is known or unknown, we come to the very interesting point raised by Senator Quinn. Someone could find the work and, even if he knew the author, he could attach his or her own ownership rights to it by publishing it in his or her own name, thereby obtaining much greater rights. Is that not so?
Obviously, it could only apply where the work is out of copyright.
How are we to know whether a found work is out of copyright? There was a great deal of debate about the authorship of some of Shakespeare's work. If someone finds a work, about which nobody knows anything, and publishes it in his or her own name, the relevant period will be 70 years. That is the point.
We are talking about the finder in this case. The finder will have rights for 25 years, on the basis that he or she has found a work which is out of copyright. The issue of 70 years plus a lifetime has, in effect, passed away and we are talking about specific new rights for the finder.
The point is that if someone publishes a work in his or her own name, it will not be known whether it is out of copyright. The Minister of State is talking about a case where a person is genuine enough to own up to the finding.
It would have to be shown that the work was never published or made available. We are dealing with finders' rights and—
My concern is that the section might not be defined tightly enough.
As I said earlier, if there are technical problems with sections which need redefining, I will be more than happy to have them looked at. I will do that in the context of the debate. I am anxious to accommodate Senators but I cannot do so at this stage of the debate because so many of the issues run counter to the directives. I do not want to appear negative. I hope we will find ourselves in agreement on various matters as the debate progresses.
Is stolen literary property considered in the same way as other property? If the work had been stolen the author would have been denied the benefits of copyright for the 70 years. What would be the position if someone found it many years later? Does it, as is the case with other property, revert to the owner?
This is a separate matter. One could not benefit from copyright on the basis of dishonest behaviour. It would clearly be a different matter and would have to be dealt with in that context. This, essentially, closely follows the directive, as do many of the other areas to which I have referred. It is well enough defined in the overall context of the Bill's provisions.
This is a most peculiar section. It states: "Sections 24 to 35 shall not apply to Government or Oireachtas copyright or to the copyright of prescribed international organisations". This becomes very interesting when one looks at section 180 – I love doing this because the prospect of being that far through the Bill almost makes the Minister of State slaver at the mouth. Section 180(4)(a) states that Government copyright in a work shall expire "125 years from the end of the calendar year in which the work was made". The EU did not make us specify 125 years for Government copyright in the Bill. We will come to this later. The point is that the Government is choosing to exempt itself and the Houses of the Oireachtas from the time limits in the Bill.
One might have thought that in a progressive society, which was moving in the direction of openness, transparency, accountability and freedom of information, that the reason these sections did not apply in the case of Government and Oireachtas copyright was because of a wish to make information more easily available by reducing the restriction on public access to copies of Bills, amendments and other materials which are subject to copyright. However, the reason for section 36 is to make the position with regard to Government and Oireachtas copyright worse. It is an absolute outrage. I am tempted to call a vote on this extraordinary section unless I get a reasonable response from the Minister of State.
I compliment Senator Ryan on his careful reading of the Bill. This extraordinary provision for 125 years escaped me totally. No one expects any—
On a point of information, are we on section 180 or 36?
There is an amendment—
Senator Henry is in possession.
On a point of order—
There is no point of order, Senator Henry is in possession.
We have not got to that section of the Bill yet but Senator Ryan is to be complimented on pointing this out. I am very glad if the Government has rectified the matter.
Does Senator Cox wish to contribute?
We were discussing section 36, not section 180.
They are connected.
I know you have ways of ordering the business, a Leas-Chathaoirligh, but amendment No. 34d to section 180 deals with this matter. I suggest we deal with the matter then, when I will be happy to discuss it.
The Minister of State may wish all he likes, but the truth is that the Government has slipped in a section to make provision for Government and Oireachtas copyright, which is covered under a separate section later. If this section is passed, the only way we can deal with it is under section 180. I am entitled to know why the Government believes that what is right for every author, publisher, film maker and so on is different from what is right for Government copyright. The Minister of State should give me a reason why it should not apply. Why is the 125 years deemed necessary? I know this matter should not arise until we reach section 180 but section 36 has been inserted because it is necessary to make the sections from 180 onward applicable, otherwise there would be a contradiction in the Bill.
The Senator is in order asking questions about section 36.
This debate concerns section 180. This deals with the expiry of Government copyright. If we make amendments at that stage, they will relate to this section. This brings us to the heart of section 180 – copyright in relation to Government and the expiry of such copyright. It is a fundamental point but we can deal with it comprehensively when we come to section 180.
Many of us would want to move on to section 180.
The Leas-Chathaoirleach is expected to be impartial on these matters. He is usually a man of impeccable impartiality. Will the Minister explain why it is necessary to have section 36 if section 180 and subsequent sections are there to deal with Government copyright?
The decision has been taken to include these special provisions for duration in the chapter which deals with the Government and Oireachtas. It must technically, therefore, be excluded here. That is all we are doing.
If there is a specific provision in legislation for Government copyright then, manifestly, we do not have to say that something else does not apply to it. If there was no other reference to Government copyright it might be different, but there is a plethora of sections in this Bill which deal with Government copyright. If that is the case there is no purpose to section 36 other than the enormous conservatism of the parliamentary draftspeople. If sections 24 to 35 do not apply to Government or Oireachtas copyright, and if we try to amend section 180, we will be told that if we do anything dramatic, no copyright will apply to Government. It would be sensible to eliminate section 36 and then we can talk about amendments to section 180 to bring some sanity to the matter and move away from 125 year terms which astonish me.
There is no logical reason for section 36 to be where it is. If it should be anywhere, it should be with the sections under Government copyright. To insert it here seems to be trying to play a trick on us so we are stuck with it before we deal with Government copyright. For that reason I oppose section 36.
I support Senator Ryan wholeheartedly. If there is anything we can do about this, we must do it. We cannot allow it to go forward at this stage because when we come to debate it later, we will be told that we have already debated it when debating section 36. It will probably be September before we debate the rest of the Bill. It is essential that this is removed and inserted with the other sections dealing with Government and Oireachtas copyright. We could then handle it at that stage.
It would create a bad precedent if we made an exception for the Government and Oireachtas by laying down a different time period for others. It is a bad example. Why should the Government or Houses of the Oireachtas be so different? Governments are disseminators of information. Why block that? I do not understand the rationale behind this.
I assume that Senator Ryan's main complaint centres on the location of this section as distinct from its content. As someone who has an interest in the duration of copyright, as laid out in Chapter 3, this was the most sensible place to locate it because all the references to duration of copyright are contained in sections 24 to 36. It is important to give a signal at this point because it relates specifically to duration of copyright and how it subsists. There should be a specific reference because of the unique position of the Government and the Oireachtas in this regard. It is not sleight of hand; this has been inserted in an orderly manner.
If this was taken in isolation I would agree with Senator Ryan because another section is devoted to Government and Oireachtas copyright later. It is put in the context, however, of sections 24 to 36; the entire Chapter is relevant exclusively to duration across a wide area of copyright activity. This is the most sensible place for the section.
I do not understand why there is such an argument about this, notwithstanding the fact that Senator Ryan sometimes subscribes to conspiracy theories. He may be of the view that there is an underlying motive. I am suggesting as an alternative argument that in the context of sections 24 to 36, it is right to insert this copyright provision. If I looked at the Bill to inquire about duration of copyright and wanted to find what was relevant, what was included and what was excluded, I would not see section 36 as being out of kilter with the rest of the Chapter. Senator Ryan's quibble is about where it is placed rather than the concept behind it.
The concern is that such a huge difference, as we discover later, is being made between the Government, the Oireachtas and everyone else. Will the Minister of State reconsider the location of this section? I note what Senator Mooney says about looking for duration of copyright but there is nothing in section 36 to give any hint about the great difference there will be between the copyright provision for the Government and Oireachtas and that for others. Will the Minister of State consider this matter before Report Stage?
This was done as a matter of convenience to separate these two issues in the interests of clarity. The Attorney General's advice would have been sought. He advised that the Government copyright provisions had to be inserted in order to dispose of the relevant interests properly. We can discuss detail, but there will be plenty of scope for a debate later on. It was inserted in reply to a request to make copyright legislation more user friendly and comprehensible. That was the motivation behind it. We could deal with this matter comprehensively later on.
I have tried to be helpful since we started this debate. We could have a long debate on this matter now but we will revisit it later. It is an interesting debate and I would be glad to express my views and to hear those of Members. This was included here for genuine reasons – to make the legislation user friendly and to try to cover any problems in relation to clarity. That is the only reason it was included there. We will listen to the views later on.
A division seems imminent on this section. The Dáil will go into recess later this week, although we will sit next week to do some tidying up. We are on section 36 having resumed on section 23 four hours ago, although I know there are some further hours to go tonight and presumably tomorrow. The Bill will not go to the Dáil until September and October, and I appreciate the Minister of State's point about having matters further examined. Why face a division when the Minister of State could come back to this House, as the Bill was initiated here, in the autumn having considered those matters and rather than have us gallop through the legislation? We face a division which may be unnecessary. Am I talking sense?
That is totally out of order.
I was trying to be helpful. The Minister of State is a very decent man and is trying his best to be helpful to us, which I appreciate. Perhaps we could take a longer sos on the Bill.
On a point of information, we all know the pressure surrounding this legislation from international fora. This Bill will not be rushed through the House but will be completed before the summer recess. We have an international reputation to live up to and we will prove to other countries with which we deal, particularly in the intellectual copyright area, that we are a leader in the field in terms of the protection of these rights and will amend all necessary legislation. This legislation is necessary and most Senators made excellent contributions and take it very seriously. The Bill will be concluded before the end of this session to indicate to other nations with which we trade our serious concern about this Bill.
I hope this House will do justice to this Bill. I take Senator Coghlan's point that it will not be law this side of the autumn.
As I said on Second Stage, I am behind the principles of this Bill and agree with its thrust and the need for it. We have a job to do as legislators, which we are doing. The Minister of State, in fairness, is trying to be helpful but to some extent and for reasons I do not fully comprehend, his hands are tied. We are to get further advice and perhaps advice from the Attorney General's office. I made a suggestion in the best interests of the Bill and Members. I do not dictate the pace – that is a matter for Government.
I am delighted to hear that the eyes of the world are on us, and am sure they would still be on us if we met in early September to discuss this Bill at our leisure. The Minister of State would have had time to consider some of the points we raised and we could have a sensible, sedate and reasonable discussion instead of an increasingly fractious one as exhaustion hits us.
I return to section 36 to explain the problem. This is not only a problem of location. Incidentally, the last thing I believe in are conspiracies. Cock-ups are the stuff of life—
The Senator belongs to my school.
—and conspiracies only happen when a cock-up is found and people try to cover it up.
The problem with this section is that it excludes Government copyright from all questions of duration and, therefore, excludes An Gúm which publishes a considerable amount of material in the Irish language. We will end up in a position where copyright on publications as Gaeilge is at least 55 years longer than those for publications as Béarla. We have all the material collected by the Irish Folklore Commission which was complied by people working, in most cases, for the Government. That includes sound recordings which, according to section 26, would be copyright only for 50 years after the sound recording is made. With the provisions of section 180, however, it could be copyright for 125 years.
It is not my fault that the Government chooses to organise the legislation so that I must refer from section 36 to 180. If we pass section 36 and come to section 180, I will be told we cannot do anything because section 36 has been passed. I will not fall into the trap, as I was tempted to do, of calling a division because that would dispose of the matter and we could not pursue it on Report Stage. I will not call a division because I want to pursue it again.
It is very wrong to exclude sound recordings, films and computer generated material made by Government or by employees, agents or officers of the Government or the State and include them under a separate section some 150 sections further on and include an entirely different timeframe. The time duration of Government copyright should have been included in this Chapter. Let us remember we are not talking only about Acts of the Oireachtas and parliamentary debates but about a range of material compiled by an officer or employee, as stated in section 180.
The real catch-22 is that if we pass section 36, it makes it much more difficult to amend section 180. If we call a vote, section 36 will be written in stone so we can do nothing about it. I am in a ridiculous position, not courtesy of the Minister of State or his officials but courtesy of the extraordinary logic of the parliamentary draftspeople, a logic which has always defied my intellect. Section 36 is wrong and the Minister of State should give a commitment to withdraw, dilute or do something else with it at this stage, so that we can have a sensible debate on section 180 on the assumption that he will look again at section 36. That would be a reasonable position.
Before the suspension, I asked if the Minister would give an indication of his willingness to look at this issue in light of what has been said about section 180 because this section would make any changes to that section very difficult. Ensuring that the various provisions of sections 24 to 35, or a saner timeframe, are introduced will necessitate substantial amendment to section 180. I wish to know whether the Minister of State has any thoughts on the matter.
In the interests of expediting business, I give the Senator an assurance that I will be flexible in considering section 180. I cannot give a definitive response because the section is further down the line. The Senator's amendment proposes that Government copyright should expire in like manner to other copyright. I made the point earlier that we should move on and deal with the issue when it arises. However, I assure the Senator that I will be flexible when we reach that section.
I would like to be in a position to accept what the Minister of State has said. However, we are dealing with section 36, which concerns the non-application of certain provisions on duration to Government copyright, etc. This comes at the end of Chapter 3 which relates to duration. Section 180(4) proposes that Government copyright in a work shall expire 125 years from the end of the calendar year in which the work was made.
We will deal with that matter when we reach the section. I will be flexible.
My experience has been that if we go past section 36 and try to return to it at a later stage, we will be told we cannot do so.
Not when the sections are related.
I ask that the relevance of section 180 to section 36 be firmly established when debating that section.
Before the break, the Leas-Chathaoirleach accepted there was a relevance.
He may have but I might not.
In section 36, which relates to duration, no mention is made of the fact that in section 180 the Government is given 125 years copyright. I accept the Minister of State has said that he will deal with this issue when we reach section 180. However, when we reach the section, I do not want to be told that we should have dealt with the issue on section 36. As long as that is established and recognised, I will take the advice of my more experienced colleagues. If Senator Ryan is willing to accept it, and the Minister promised that he will be flexible, I accept that we can debate the issue on section 180.
When one reads section 180 and the heading to Chapter 19, "Government and Oireachtas Copyright", one thinks immediately of matters central to Government such as legislation, Bills, Oireachtas reports, reports of Government Departments, etc. However, on reading the detail of the definitions it becomes clear that we are not merely debating these matters, we are debating a swathe of material which could be covered by a variety of provisions, such as those on film, sound recordings, typographical arrangements or anonymity. These sections should have been integrated into the chapter on duration of copyright.
The problem is that the Bill is badly structured because there is no reference to duration in the section on Government copyright. The subsection which covers duration has written beside it "Government copyright". Section 180 in the arrangement of sections reads "Government copyright" and there is no reference to duration. This is why we have a problem. The reason I will not push this to a division is because I do not want to dispose of the matter. This would make life more complicated for us and a little less so for the Government. It is an incorrect way to deal with matters.
Section 180 deals with Government copyright in its entirety. The fact that duration is covered in that section means that it must, therefore, be excluded from the section in Chapter 3. This is the reason it is excluded in section 36. There is no hidden agenda and there is nothing untoward about the matter; it is very simple. Government copyright is being dealt with in the section which deals with Government copyright and that includes duration. When we reach that section, I will have no difficulty in assisting and supporting Senators on the opposite side and ensuring their views are taken on board.
Neither Senator Cox nor I are short of intellectual ability, therefore, let us not argue about this. The issue is that it is deemed necessary, under the chapter dealing with duration of copyright and in previous sections, to deal with different aspects such as artistic work, literary work, film and sound recordings. This issue hangs on "duration". This Chapter deals with different periods for different issues such as authorship and anonymity. The difficulty is that there is no such fine tuning in section 180. There is no identification of authorship or the differences between various aspects. It would be better to have a subsection in Chapter 19 dealing with the duration of Government copyright because that would make the matter clearer. It would also be helpful to have had a reference in section 36 to the later sections. There are many precedents for a reference at the beginning of a section that save where sections 180 to 185 apply, the following shall be the prescriptions for duration of copyright. That would be normal as it would warn of something coming later. As it is, at the end of it all, it states that it does not apply. It is not good legislation; it is not the right way to do things. I hope when we come to section 180, there is no reference to these sections.
I still fail to appreciate the reason section 36 seeks to exempt sections 24 to 35. I do not understand the rationale for them not applying to Government and Oireachtas copyright and the reason, in section 180, it qualifies for the protection accorded.
I thank the Senator for speaking to the section.
There is no question of anyone thinking there is conspiracy about this. However, some association between the two sections would have been useful. The Minister described section 36 as making the Bill user friendly. It would be even more user friendly if the section pointed out that a subsequent section deals with Government and Oireachtas publications. I find it difficult to understand why there is such a divergence between the two groups of sections. Perhaps, between now and Report Stage, the Minister could look at this and consider, if not combining the sections, at least flagging the later section.
I would be more than happy to examine these points. Senator Coghlan stated he could not understand the reason we are doing this. Obviously most of the debate today relates to work afforded copyright of 70 years plus the life of the owner. However, Government copyright requires special provision because it cannot have a meaningful life. That is one of the problems.
From where has 125 years been plucked?
I am open to discussing that. I have made that commitment and I will honour it.
I move amendment No. 14:
In page 39, subsection (1)(a)(i), line 4, after "storing" to insert "an infringing copy of".
Librarians have contacted me to express their concern about the existing wording which they feel implies storing even an original copy of the work could be construed as copying. The section states "(a) in relation to any work – (i) storing the work in any medium,". Perhaps they are being supersensitive about this but it has been suggested to me that it should become "storing an infringing copy of the work". I do not think it should cause the Government difficulty as it would just clarify the position. I presume no-one thinks storing an original work could be considered copying but at the same time it might be wise to insert this.
Perhaps there is a misunderstanding. Chapter 4 deals with the rights of the copyright owner. These are exclusive rights of the owner. I want to clarify that the paragraph in question is a positive statement of an element of the reproduction rights under copyright law. There is nothing mysterious about it. The insertion of the negative concept of Senator Henry's amendment, "an infringing copy of", would not be appropriate and would not have a place in this provision. Its inclusion would be out of character with the thrust of this section.
I thank the Minister. I will tell my librarian friends that it is a positive statement and I will come back to him on Report Stage if there is a problem with it.
I move amendment No. 14a:
In page 39, subsection (1)(a)(ii), line 6, after "work" to insert ", except the temporary storing of the work in the transient memory of the computer for the sole purpose of viewing it, or the temporary storing of the work in the permanent memory of a computer for the sole purpose of a later initial viewing, in cases where a work is lawfully made available to the public by means of electronic transmission.".
This is a dreadful sounding amendment and I apologise for it. It arises from a technical peculiarity associated with computers and particularly with the use of the Internet. I ask Members to bear with me while I try to explain the issue here. I have received advice on it.
Normally, if work is "made available" to me, I do not have to do anything to enjoy it other than use my ears or eyes, as the case may be. To read a copy ofThe Irish Times, I need only look at it. Actually, lately I have to put on my glasses but that is irrelevant. My point is that I do not need to make a copy of the newspaper to read it. This is the case with most copyright works. Nothing further is needed for the making available to become a reality.
Radio transmissions are a little more complicated but the copying aspect is still unaffected. To transmit voice, music or any sound by radio or telephone cable, it must be reconstituted at the listener's end before he can hear it, but copying is not involved. If it is, a possible infringement is created.
We now consider something sent over the Internet and received on a computer. What appears to happen does not actually happen. It appears that something like that which happens with a radio or television is happening. It appears as though a signal comes down the wire and is reconstituted on the screen of the computer at the receiving end. Therefore, at first sight there appears to be no difference between receiving a picture on a computer and on a television. However there is a difference. Admittedly, it is a purely technical one, but it needs to be accounted for in legislation.
In order for the incoming item to be seen on the computer screen, it must first be copied into the computer's random access memory. This is a totally unavoidable intermediary step. The item cannot be sent directly to the computer screen. It may only get there via the random access or transient memory of the computer. There is no simple way of getting around it.
From a copyright point of view, we want to ignore this technicality. The copy is made solely for the person to exercise the making available licence which he or she enjoys. The person cannot have the work made available over the Internet without making this copy so there is no reason to claim any improper copying is taking place. We should want to forgive this unavoidable copy but we must do so very carefully. We must be careful that, in allowing this cat in the door, we do not allow it to bring in with it the whole neighbourhood of cats. This is the reason this terribly involved amendment is necessary.
For example, while we want to permit a person to see the item, we also want to prevent them copying it for future use. One way to do this is allow them to copy it into their transient computer memory only. Any copying to any other computer memory is off limits. This has attractions in that a great thing – for our purposes – about random access memory is that the material in it is lost when the computer is switched off. A copy received over the Internet will self-destruct sooner or later, usually sooner. Even if the computer is not switched off, material is continually erased from random access memory to make way for new material.
However, if we were simply to allow copying in random access memory for initial viewing but not allow any copying to other memories we would be depriving users of a very popular facility. More importantly, we would reduce the likelihood of compliance with prohibitions on genuine copy. The facility to which I refer is the ability to download material from the Internet for later viewing. For example, if one wishes to read a newspaper on the Internet, one can call up a page, read it and then call up another. If one does that, one will probably use only the random access memory. A drawback is that it is expensive because one is paying for connection time and the use of the telephone line even when one is not downloading all the material but just reading a page. Accordingly, most people who are serious about the Internet make use of a simple facility that downloads pages in advance of being used.
One can instruct the computer to download the entire newspaper or links on a page being read so that when one clicks on the links the relevant pages will appear because they will already be in the computer, so to speak. The complication is that such downloading for later viewing is not in the random access memory but in the permanent memory of the computer. We should allow the permanent memory to be used for the purpose of storing a page before it is viewed for the first time but forbid the use of the permanent memory for making copies in any other way or for any other purpose.
This makes a clear distinction between initial viewing of material and repeated viewing of that material. We do not want to regard one as copying but we want to regard the other as such. Under appropriate circumstances we want to control it and we want to consider it as an infringement. The objective of the amendment is to make these distinctions. This is such a technical issue and, therefore, my wording may not be correct. It is clear enough to set out the principle involved and if we agree the principle, it should be a simple matter to capture it in draft.
It is important to get enmeshed in this detail. Perhaps the greatest opportunities for infringements of copyright in the lifetime of this legislation will come through the use of computers. This has been a grey area to date. A culture has already grown up among users that anything is acceptable. Our task through this legislation and otherwise is to build a culture of copyright compliance.
We are moving into an era where knowledge will form an overwhelming portion of the new values we create. Knowledge will be the raw material of the next millennium, equalling or surpassing the importance of what we consider to be raw materials today. We cannot go into that era with a lack of respect for the new values being created and that is why we must build a culture of compliance. This will not be easy because most computer use takes place in private. We all know the phrase "house devil and street angel". Where computers are used behind closed doors we must rely on people's ethical beliefs if we want to ensure compliance.
The existence of clearly defined principles will be important. We must draw the lines clearly, carefully and fairly between what is right and wrong. Any doubt, vagueness or ambiguity about what is or is not permitted will undermine the possibility of creating a compliant culture. We do not want to create a culture in which people think it is all right to create copies or are vague about the matter. It must be made clear what is and is not permitted and this must be based on common sense.
In this endeavour to create a culture of compliance, provisions, such as my amendment, are necessary. I do not suggest it has the correct wording and if the Minister of State accepts the principle, I will accept that the wording of the amendment may need to be changed.
Senator Quinn took a circuitous route but as I was listening to him I wondered if a similar question arose in the context of blank tape reproduction. Since the introduction of the cassette tape, which is used by the domestic market, and in spite of all the copyright laws, no agreement has been reached which prevents people from downloading or copying copyright material and reproducing it for private domestic use rather than commercial use. There has been no industry norm in this regard. Although there was an attempt to introduce blank tape levies, the industry has not come to terms with the rapid rise in technology. One can now buy a mini-disc recorder or a compact disc recorder to make recordings of one's favourite songs to play in the car or wherever else. Technically there is a law, but it has not been executed. Perhaps the Minister would clarify that.
Do international standards not apply in this area? Senator Quinn referred to domestic legislation, including this Bill. While this legislation is being enshrined in Irish law, it is effectively part of international law. Due to the importance and complexity of copyright we cannot act in isolation, for many of the reasons outlined by Senator Quinn to do with Internet technology and wholesale access. Irrespective of the laws we pass, we must take cognisance of international law. Perhaps the Minister of State might clarify that in the context of this legislation.
This Bill is not like any other legislation which is put in place and executed by whoever is responsible. This is about intellectual property that transcends borders and about being aware of the international dimension. When one talks about curtailing, controlling or protecting copyright or intellectual property, we must take cognisance of international directives and the attempts by the various industries in America and here to find a common objective so that they can protect copyright and intellectual property and get the money from the royalties. This is a complex area.
I agree with Senator Mooney's point about blank tapes. However, the situations are not comparable. Senator Quinn's amendment is reasonable in its objective. We are dealing with a case where people are broadcasting freely. We are talking about a different medium where material is accessible on screen. It is reasonable, therefore, to assume that it is intended to be viewed. That is why people put material on screen. Electronic transmission of material should be made legal. This is not the same as copying material to blank tapes, a practice which was widely abused. What people transmit via the Internet is different. I look forward to hearing the Minister of State's reply.
How practical is it to police this field? Is it capable of being policed? I do not know whether it is possible in technological terms. Is there a central authority capable of registering the fact that this material is being called up on a computer? Perhaps there is, but if there is not it is bad law. The first principle of legislating is to legislate for matters that can be policed and monitored and to make laws that can not only be enacted but can be made real, so to speak. It seems we may well make certain things illegal but it may have absolutely no effect what ever. That is silly. I am inclined to agree with Senator Quinn. At present we are not supposed to copy gramophone records or CDs, but people do it all the time. RTE holds the copyright on its programmes and films shown by them and people regularly copy them. This practice is so widespread that it is freely referred to by broadcasters who highlight the programmes that should be taped if you are not at home. That is illegal, but it goes on and there is absolutely no method of monitoring or policing it. It seem that Senator Quinn is making something legal that is likely to happen and is incapable of being monitored, policed or punished. That seems to be the essence of good law.
Section 38(a)(ii) states:
the making of copies which are transient or incidental to some other use of the work;
I understand what Senator Quinn is trying to do and I understand why he may think the amendment is necessary. If I download an archive page to my computer fromThe Irish Times website, I have not infringed copyright in any way and the Bill does not mean I have done so. Only when I make use of the material for some other purpose do I infringe copyright. We do not need the amendment tabled by Senator Quinn because we will have infringed copyright by using the material for some other purpose and downloading the material on to our PC, whether in random access memory or in hard disk, does not infringe the copyright of that material.
I understand where the Senator is coming from and he made some valid arguments, but the section covers that area and there is no need for an additional amendment.
If the Senator downloads it and quotes it in her contribution, is she infringing copyright?
No, one is not infringing the copyright provided one acknowledges from where the reference came. The act of downloading fromThe Irish Times Internet site to a PC does not infringe copyright and will not do so, according to what is provided in the Bill.
I am glad Senator Quinn raised this issue, though I do not agree with his amendment. I do not have much sympathy for the music industry's moans about the dreadful people who use blank tapes to make copies because in fact it is usually youngsters. The people really interested in music who rely on the second copy of a CD on a cassette and who otherwise would have bought the music are few and far between. I am always intrigued by an industry that is as enormously profitable and as integrated as the music industry, which not only produces the actual recorded music but actually in most cases produces the blank tapes which out of one side of their mouth they complain about, even as they make money out of it at the same time. In some cases they also produce the equipment used to make the copies because of the incredible level of integration of many of these organisations. Vastly greater quantities of music are sold because people hear something they have never heard before on a copy that somebody made that is scratchy and far from perfect and nobody—
If the Senator wrote the song, is he not entitled to his rights to claim copyright on it?
Entitlement I would not dispute, but there is a degree of obsession that some people seem to have with this. There is a vast quantity of material available through the Internet which is probably in breach of copyright. The degree to which any misfortunate owner of copyright is being deprived of revenue by that fact is a different question for a number of reasons. The quality of most material downloaded from the Internet is still well below what somebody would like if he likes music. The quality of moving visual images is still very low and while it is arguable that with increasing banding this will change, the truth is that the provision of wide band Internet access will be done by a limited number of service providers who will be easily regulated.
It will not become a case that everybody will have access through their own domestic telephone line to broad band Internet services which will give perfect quality visual and sound reproduction through the Internet. People should lighten up on the degree to which the Internet will steal their copyright. People will have access to material that they would not otherwise buy, but the degree to which music or other material will be taken by people who would otherwise pay for it is quite small. The Internet is unregulatable and all you can do is hit a big offender and deal with him or her vigorously and put up with the fact that in most cases the problems are more perceived than real. The real problem is where people are making money out of other people's work. It should go to the author of the work and instead it is going to a pirate. Most of what happens on the Internet is provided by amateurs who should not do it, but this makes life more colourful and interesting.
I welcome this debate. We are moving into consumer issues. In the course of preparation of the Bill, I felt that we should pay attention to the consumers' position as well as the rights of others. Senator Mooney and others have raised the issue of blank tapes. There is no attempt to impose a legal or industry norm governing private home recording and there is no question of blank tape levies, as those who have perused the Bill will see. I would not envisage that route because, as the Senators have said, it has never proved to be practicable. The environment will change in my view when the digital system achieves greater prominence and encryption and copy protection will be more practicable. That is for another day.
Section 96 provides for an exception allowing free home copying of a broadcast or cable programme. It is only right that we allow the individual freedom in his home to make a copy tape. It would be a genius that could come up with a regime to check everybody in their homes, in the absence of rights holders organising an effective rights protection or encryption system which would be capable of supporting their claims for payment. It is quite clear that this is not very practical for rights holders at present but Senators are right to refer to the fact that digital technology may soon make it much easier for rights holders to do this effectively. This is an area we can only speculate on and it is one that is down the line somewhat. I felt it was important to have provision to allow individuals to make home recordings for private use. I have dealt with the blank tape issue.
Senator Cox pointed out correctly that section 83 refers to transient and incidental copies. We are moving into other sections. The issue of transient and incidental copies is complex. I remind Senators that there is an EU copyright and information society directive being considered at present. It would best deal with the issues that Senator Quinn and others have mentioned. These issues are important in terms of our information technology industries. These are broad issues and they affect areas other than more than my ministerial remit. They need to be addressed carefully by the Government of the day.
Senator Quinn requested the international position on this issue. Article 9 of the Berne Convention for the Protection of Literary and Artistic Works provides:
Authors of literary and artistic works protected by this convention shall have the exclusive right of authorising the reproduction of these works in any manner or form.
The scope of that article is broad. The expression "in any manner or form" could not be more expansive in scope. It clearly includes the permanent or temporary storage of a work by any means, electronic or otherwise. The language in the Bill suffices and accommodates provisions such as that Senator Quinn mentioned. I oppose his amendment.
I accept the Minister of State's view. My intention was to make sure that we permitted one and not the other. I understand the point he made about it the difficulty in policing it. We must ensure we are not inhibiting the ability of someone to use the Internet for that purpose. We are inhibiting someone to use it repeatedly even if it is difficult to police. It may be difficult to police but it does not mean we should not have it in law. If we did it would allows us to protect ourselves in the future. I accept the Minister of State's assurance that it will be covered by other legislation.
I move amendment No. 15:
In page 39, between lines 18 and 19, to insert the following new subsection:
"(3) There shall be a presumption that material which is published on the Internet may be copied accurately and with an acknowledgment of its source, without formal permission, unless a statement to the contrary is published with the material on the Internet site.".
I thought I was in clear water when Senator Cox was speaking because I wanted to include in the Bill what she said was thede facto position. I wanted people to know where they stand. Material is made available on the Internet. I want this Bill to be medium-neutral, although the Internet has not been defined. We can discuss copies of books which are sold and CD-ROMs which are licensed for use. It is more difficult to deal with material available on the Internet because it can be accessed by anyone who has an enabled computer. They can download material, print and copy it. The medium is used to make material widely available without restriction but there is rarely a statement that says what it is. Senator Cox said it when she was speaking.
From what the Minister said regarding the Berne convention I wonder whether my amendment is even more necessary. For example, a librarian may find useful information on the Internet and, knowing the transient nature of material on the Internet, downloads it without seeking permission from its author. It can be difficult and time consuming to get permission sometimes. Will librarians have a problem? Must they make sure they have permission from the author before they download material? The nature of the medium requires us to include an amendment such as this. As Senator Cox said, it is presumed that there is no restriction on legitimate and accurate copying and storage for non-commercial purposes. Unless we state that I do not see how people will know about it.
I support Senator Henry's amendment. Unless there is a declared prohibition it will be all right to use material again. If there is a declared prohibition people will be aware of where they stand. The Senator's amendment is sensible and logical and I hope the Minister accepts it.
Section 83(2) reads:
Where a copy, which would otherwise be an infringing copy, is made under this section and is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be deemed to be an infringing copy for those purposes and for all subsequent purposes.
The Senator's amendment is unnecessary. It is acceptable to copy as long as a person acknowledges the source and there is a no statement on the Internet. The making of an infringing copy is covered in a later section.
The amendment would have the effect of subjecting the enjoyment of copyright rights to a formality in the form of a requirement to make a copyright statement on works made available through the Internet in order to avail of protection. Such a formality would be contrary to the terms of Article 5(2) of the Paris Act of the Berne convention on copyright, the foundation treaty of current international copyright law. I cannot accept Senator Henry's amendment because compliance with the Berne convention is a major objective of the Copyright and Related Rights Bill, 1999. I appreciate that many of these issues are the subject of great debate. We mentioned the other fora in which they are being discussed. My difficulty with this amendment relates to the Berne convention on copyright.
I cannot see how inserting the positive statement in my amendment can cause such a difficulty. I am not an expert on the various conventions mentioned, particularly the Paris Act of the Berne convention. Senator Cox referred to what can be done and there is no harm in including the positive statement in my amendment. The Minister of State earlier stressed the term "user friendly" on a couple of occasions. What Internet user will look up the Paris Act or the Berne conventions?
The inclusion of my amendment in our legislation would be eminently useful. It would not counteract the spirit of the Bill. I would have thought it was within the scope of it. My amendment would ensure that a person who wants to copy material does not have to find out from whom they must get permission to do so before it goes off the Internet. We have not even defined the Internet.
I am satisfied we have gone as far as possible. In the case of the Senator's amendment we would have to insert a positive statement in order to make a copy. I am concerned about formalising this. I am also concerned about the rights of copyright holders. We already have a S159–F6
balance of rights. I accept that we have been making the case for the consumer for the past number of hours but we have referred to copyright holders. In this case there is a danger of formalising the matter. Senator Henry made a case for her amendment and I would be happy to consider her amendment on Report Stage.
I am even more anxious now. This is not as clear an issue as it looked initially. It needs to be examined carefully. I agree that we should be concerned about the copyright of whoever placed the work on the Internet and I am bemused by the section of the Bill dealing with the Internet. If we are to be concerned about the copyright of the person who placed the material on the Internet then we are into a different situation. We have to look carefully at the rights of consumers and others, especially as all the material will be new. If the rights of those who hold the copyright to material are to be examined, then there is greater need to clarify matters concerning the Internet.
If a person placed material on an Internet site without making a statement regarding copyright, then a defendant whom they tried to prosecute could argue that the Internet site did not include a warning about breaches of copyright and, therefore, they were not impinging copyright. If there is a presumption that it is illegal to use or to sell for profit copyrighted material downloaded from an Internet site, then it is not necessary to include a statement on the Internet site. If someone downloaded and used material from my Internet site in breach of copyright, I might lose a court case against them if I had not included a warning that unauthorised use of the material might be in breach of my copyright.
I am looking for a general statement which is different to having to place individual statements.
When Thomas Caxton invented the printing press I can imagine the flurry in the Church as to how it would control this development to ensure that the peasantry and the plebeians did not get their hands on material which was unsuited to their simple minds. We are in a slightly similar situation. Anyone who places copyrighted material on a website and does not expect people to download it and, probably, abuse it to a degree by giving it to others, is very foolish. People will have to realise that, thankfully, the Internet is uncontrollable. It is eliciting a control tendency from business, government, to a degree, and other international organisations which was probably always there. The fundamental problem for government and industry is that the Internet was successfully designed by the US Department of Defence on the basic premise that it would be uncontrollable. However, the genie cannot be put back in the bottle and people are expending enormous efforts trying to regulate what is, by definition, beyond regulation. We should move on as no one is going to regulate the Internet. Thankfully it is impossible to do so and it would undermine many of the provisions of the Bill and put manners on many people who think they have a monopoly on information.
By the end of this argument it would be more useful if we provided for ade facto statement whereby people could copy material without any control.
I am increasingly confused. I understood Senator Cox to say that downloading material from the Internet would not constitute an infringement of copyright so long as an acknowledgement was given. She now seems to be concerned that someone whose copyright is infringed in such circumstances could not instigate court action. I am confused but I am moderately supportive of Senator Henry whose suggestion is useful but, perhaps, not absolutely necessary. We often hear Government argue that a provision is contained in another part of the Bill.
Senator Henry made a telling point when she referred to the phrase user-friendly. We must give people maximum access to helpful information. This is reasonably helpful and reasonably clearly expressed information in a situation which clearly leads to confusion. Some Members are more computer literate than I, despite those ghastly advertisements.
What about the Senator's advertisements for Telecom Internet?
That is what I am talking about. Is it a surprise to know that I am an old tart who just did them for the money.
Are they listening?
I have no idea.
May we establish the relevance of this issue to the amendment?
You should ask Senator Mooney. There is a level of contradiction in what Senator Cox said. At worst, no great harm would be done by Senator Henry's amendment. It would be in line with the thrust of the Bill if she stated that this was incorporated later in the Bill. However, confusion again arises as the Minister of State appeared to say something different about the protection of copyright.
I have to come to Senator Norris's defence. Members opposite were promoting Fianna Fáil in the 1980s but now say they did not know what was going on. Senator Norris is entitled to promote Telecom Internet even if he did not know what was going on.
Is that relevant?
I wish to clarify the Government's position. Under the Berne convention one cannot make the rights of copyright holders dependent on the observance of a formality. This will involve the attachment of a statement and the requirement of people to register; it is a general provision under the Berne convention. These debates are enlightening as regards private copyright and such situations may be all right. However, that is the position as regards the Berne convention.
I will refer everyone who asks me about this to the Berne convention. I was happier before we started to debate this amendment than I am now as it seems more relevant than ever. I am not going to delay the House but who has a copy of the Berne convention at home? At least one has some hope of getting hold of Irish legislation.
Section 38(1)(b) states:
in relation to an artistic work, the making of a copy in three dimensions of a two dimensional work and the making of a copy in two dimensions of a three dimensional work
This section states that such works are covered by copyright but this seems a little problematic. For example, what of an art student who makes a two dimensional drawing of a statue or someone who turned a postcard reproduction from a work in the National Gallery into another dimension? This involves the question of artistic freedom and there is the problem of the practicalities of policing such a provision. Surely this is one area where breaches will occur as two and three dimensional photographic reproductions of works of art are widely available in art galleries.
Is it the intention to control the capacity of artists to make studies of these materials? Will artists no longer be able to draw from reproductions of statues or from the actual statues? What is the reason for including this provision about three dimensional and two dimensional? I am considering the matter in terms of the plastic arts as they exist, especially in terms of artistic works accessible to the public. Perhaps I am behind the times in these matters and that what is contemplated is concerned with further developments in holographic technology or something similar. I am a little concerned about restrictions being placed on artists and art students in this manner.
Am I right in suggesting that the thrust of copyright legislation is to protect the intellectual property of the individual concerned? Bearing in mind what Senator Norris said, which is an important point, will the Minister of State clarify that, if there is a work of art in three dimensions which another artist reproduces in two dimensions orvice versa and from which he or she profits, the thrust of the section is to protect the intellectual property in this case which is one of a wide variety of areas outlined in the Bill? That is my interpretation. Is that correct?
The changing of a two dimensional work into a three dimensional one is almost a new work. The new work is only inspired by the original, so I do not see how something can be copied from two dimensions into three.
Senator Mooney is correct. The copyright gives the first rights holder all manner of exclusive rights to authorise certain acts which exploit the work in question. It gives the right to authorise copying, adaptation, distribution and the making available of the work to the public. The position on copyright is very clear. I understand Senator Norris's point. He is talking about where individuals take photographs of a statue.
And the owner would be an institution rather than an individual.
As in the case of home copying, this is not an area and these are not the people being pursued by the legislation. However, one must be wary of large-scale commercial exploitation of the works of artists. This is the thrust of the section. It is important the provision be included but it is not concerned with individuals who take a photograph of a statue in a social context.
It has occurred to me that this section might be useful in dealing with morphing, a major problem in child pornography, where the heads of adults are put on the bodies of children or a well-known statue is changed and sold as pornography. This could be a useful section in dealing with something such as that. I had not thought of it until other Senators, Senator Norris especially, raised it. It could be useful in securing prosecutions in this area.
I am surprised at Senator Mooney's innocence. The purpose of the Bill is to protect the interest of large, powerful and rich multinational organisations.
That is not true.
The consideration of individual artists is an incidental follow-up.
That is crazy. The Senator has no appreciation of the matter.
The reason the Bill is being driven through the House with such urgency is that the pressure from the United States is enormous, because of the threat to our software industry and because of our non-compliance with international intellectual property matters.
There are a number of reasons.
It is naive in the extreme to believe poor struggling artists on their own would be able to take up so much of the time of the Houses of the Oireachtas. The Bill has little to do with that, which is an incidental matter. This is about big business and its desire to make more money out of us and we should not forget that.
I do not dispute that multinational corporations have been pressurising the Government, as they have been pressurising the European Union, to get their act together. Ireland is one of several countries in which intellectual property has been acause célebre for several years. The last legislation enacted in this area was in 1963 and it is now outdated. Let us forget about using clichés about struggling artists. There are genuinely creative people in Ireland who are denied their rights because of inadequate legislation in this area. There is no proper vehicle or legislative platform by which they can protect their rights. One can argue from a left-wing perspective until the cows come home and I will not disagree with it. I am not that naive, but it should also be kept in mind that there are genuinely creative people who are not benefiting as a result of successive Governments' neglect of this important area.
I move amendment No. 16:
In page 39, subsection 1(a), line 26, after "Internet" to insert "or through any publicly accessible computer network".
The purpose of my amendment is to acknowledge that there is a possibility of life after the Internet. I presume we wish to create a Bill which will last a generation or more. I get a sense the Minister of State does not want to return to this matter for another 25 years. Ten years ago, I had never heard of the Internet. Neither had most people. It is likely that, in ten years' time, something else will have taken its place. The purpose of my amendment, which is easily understood, is to ensure the section is wide enough to cover everything. It may be needed. The Internet is unlikely to survive another ten years. I would hate to have to return to this matter in that time and I believe the amendment solves the problem. I am sure it is one of the few the Minister of State can accept.
I am still awaiting the amendment from Senator Quinn which I can accept. This amendment raises the question of the making available of works through publicly accessible intranets, which are limited networks of computers which could operate on a number of bases, ranging from something akin to a community cable based network to networks within publicly accessible institutions, such as schools and libraries.
It is possible there are cases when the inclusion of materials in intranet databases will result in "making available" in the terms meant by section 39 which is the subject of the amendment. The general provision of section 39(1)(a) should capture these instances, although I accept there may be practical difficulties of deciding in particular cases whether making available in the terms meant by the Bill will have taken place. Rather than adopting a hard and fast rule which might operate unreasonably given the wide differences which may arise between individual cases depending on the circumstances of the intranet involved, I would prefer to rely for now on section 39(1) as it stands pending further consideration and clarification of the issues by my Department and in the EU and international fora in which this issue has been raised.
I am not ruling this out. My advice is that the amendment takes account of the Senator's concerns. What we have is satisfactory and sufficient for the purposes for which he has tabled his amendment. I will discuss it with the European Commission. The Senator is rightly concerned about the situation in future and while I cannot accept the amendment, I assure him it is something we will raise with the Commission.
I had thought I had backed a winner with this amendment but I accept the logic of the Minister of State's argument. In my opinion the word "Internet" will have fallen into disuse in ten years time and I would hate to discover that we had limited ourselves in some way by referring to something which will no longer exist. I believe the wording used in the amendment is correct and that the term "or through any publicly accessible computer network" should be included in the Bill. However, I accept the Minister of State's statement to the contrary.
I move amendment No. 16a:
In page 40, subsection (3), line 4, after "work" to insert ", provided that the person who provides such facilities has taken reasonable care to ensure that the facilities are not being used to infringe the copyright in any work being copied."
This amendment is relevant to a matter to which I referred earlier, namely, the creation of a culture of compliance. I know that the Minister of State did not agree with my earlier arguments in respect of this matter but I believe the establishment of such a culture is central to what we are trying to achieve. If a culture of compliance does not come into being, copyright law will be like a barrel with many holes: it will leak.
With regard to copying, I wish to draw attention to what I consider to be one of the major differences between the world in which we now live and that which existed when the last Copyright Act was passed. In the intervening years there has been a virtual explosion in the availability of copying facilities. This profoundly affects the environment in which copyright enforcement and copyright compliance exist. The easier it is to copy, the easier it is to infringe copyright. When I attended school in the 1950s, photocopying was not part of the educational process. That meant that teachers did not hand out photocopied materials and our examination papers were produced on a machine called a duplicator. I am sure the Minister of State is too young to remember such machines.
To use a duplicator, one typed, wrote or drew on a stencil but only very crudely. I do not know if my colleagues recall them but such stencils were then placed in Gestetner machines.
Of course we remember them. We are not that old but the Senator should not try to make us seem ancient.
The copies obtained from Gestetner machines were awful and those obtained from spirit duplicators were even worse. The upshot of this was that copying was a slow painful process and not something one undertook lightly.
If one was involved with a school newspaper, half one's efforts went into producing the actual copies and the results achieved bore no resemblance whatever to the real thing. One would not consider printing a book in that manner because it would involve too much work.
It was towards the end of the 1950s that photocopiers emerged. We now take photocopiers for granted and our children and grandchildren do so to an even greater extent. I am amazed at their ability to use these machines. However, at the time to which I refer, a Xerox machine was the size of a small bedroom and the cost of making each copy was considerable – approximately £1 per page. However, for the first time, photocopying brought about the possibility of making good, realistic copies, not poor imitations. If you photocopied a book it was comfortable to read. Faster copying machines soon emerged and the price of copying fell dramatically.
People talk a great deal nowadays about the way fax machines have changed the way we do business and the way we run our lives. I was involved with An Post in 1985 when fax machines had not yet made their appearance. That gives Members an idea of how quickly the revolution in this area has come about. However, fax machines are already almost out of date.
A generation before the emergence of fax machines created the same kind of revolution as that which occurred ten years ago. This was brought home to me recently during a broadcast I was asked to make on the life of T.K. Whitaker. The latter was a former distinguished Member of the House and he created a revolution in the economic sphere. In thinking about the time in which that revolution took place, I was reminded of many of the aspects of daily life in the 1950s. One such aspect was the absence of copying facilities. At the time in question we were not aware of that absence because things had never been any different. We could not foresee a time when things would change so quickly and we certainly did not foresee the way our lives would be changed by the emergence of the photocopier.
In the 1950s it suddenly came within our power to make copies of everything. Copies became a central part of our lives and culture. Young people use photocopiers at an early age. First they get photocopies as handouts and then they learn to make copies for school projects and plays. Children often send photocopied birthday cards and invitations to each other. They use photocopies all the time. One can now make photocopies in virtually every corner shop. I do not believe I exaggerated when I referred to the explosion in copying facilities. When I made that statement I was referring only to photocopying facilities. However, copying in other areas, particularly of sound recordings, has also become part of our lives.
From the point of view of copyright protection, the explosion in copying is nothing short of a nightmare. Undoubtedly, the ability to make copies has brought great benefits to a large number of people. However, it has also brought about the ability to undermine intellectual property rights as never before. There are those who might state that this is inevitable but I do not believe that need be the case. The business with which we are dealing is an affirmation of my belief that the explosion of copying has generated a parallel need for a change in the attitude to copying. The explosion to which I refer has created a need which did not exist previously for people to be aware of intellectual property rights and to be ready to respect them.
As stated earlier, we do not have a culture of compliance. However, the Bill will hopefully form part of the solution and become an antidote to the erosion of compliance which has taken place over the years. In my view, this is the single most important Bill to be initiated in this House since the very large Companies Act was introduced a number of years ago. It is not just that this is a huge Bill, it is a very important Bill. That is why it is a matter of such pride among Senators that the Bill should be treated with the gravity it deserves. We must ensure that it is in the best possible condition when it is introduced in the Lower House.
It is for that reason I am concerned and that we are raising a great number of points. I am sure the Minister of State will allow time on Report Stage to return to a number of those points. From what he stated, however, I am concerned that they will not be dealt with on Report Stage and that the matters to which we referred will only be dealt with in the other House. We are scrutinising the Bill in such detail not for the sake of it or because we enjoy keeping the Minister of State up past his bedtime. We are doing so because we believe there is a need for good copyright legislation.
One of the ways I would like to improve the Bill is by including in it a somewhat stiffer attitude to compliance. That is the purpose of amendment No. 16a. An important issue in terms of developing compliance is that we spread the blame. We must spread the net to include not only perpetrators but also accomplices. In addition to blaming and penalising people who copy material illegally, we must also pay attention to those who make such copying possible by providing the necessary facilities. It will be impossible to construct a culture of effective compliance if we allow everyone who provides such facilities to wash their hands and state it is not their business.
I want to impose a duty of care and responsibility on people who provide copying facilities. These individuals are not innocent bystanders if they knowingly allow their facilities to become the means by which illegal copies are made. I believe they have a responsibility to be vigilant. The amendment in my name is quite mild and minimalist. Others might feel that we should go further and I would be interested in hearing Members' views in that regard.
Colour photocopiers invariably carry notices which warn people using them of the penalties attaching to copying banknotes. That warning is necessary because the technology of colour copying has become unbelievably good in recent years. I do not know if the warning on colour photocopiers is present on foot of a statutory requirement. However, I would not be surprised if that was the case because the Central Bank has always been extremely strict in the way it guards against counterfeiting.
The object of raising this matter is not to compliment the Central Bank during its time of trouble. My purpose is to suggest to the Minister that it might be timely to investigate the concept of placing warnings on photocopiers to see if there is a precedent which could be used for the implementation of copyright protection. For example, where a photocopier is available for direct public use, in other words, where people are permitted to make their own copies, it might be apt to insist that a warning notice about copying be prominently displayed adjacent to a copying machine. If this has merit, which I think it has, it should be extended to other areas where there is risk associated with copying. It could be a requirement for the warnings prescribed by law to be displayed prominently adjacent to the point of sale of recordings, music, films or computer software. The display of such warnings could be useful in building up the climate of compliance that is essential if the Bill is to have a real effect when enacted. I apologise for labouring this point. That was my reason for tabling this amendment.
I wish to refer to a point made by Senator Norris about the danger of putting into law a measure that would be impossible to police. Photocopying facilities are now provided in corner shops. I must state my interest in this area. My company has provided copying facilities to members of the public for many years. Matters have moved to a point where people need only put money into a slot on a photocopier and the machine will automatically copy the document. While I can understand why Senators might think an amendment such as this is necessary, I am concerned that its inclusion, which would effectively spread the blame for a breach of copyright law, would place too great an onus on people providing copying services throughout the country to be responsible for policing the copyright legislation.
Most people who run businesses are fair minded. If one asked a person employed in a video shop to make a copy of a video that is protected by copyright, that person would refuse to do so. That happens regularly. It is too much to put the onus on people providing simple copying facilities – at a price sometimes as low as 2p or 3p per copy on which there is a profit of a little as 0.5p per copy – to be responsible for policing breaches of copyright law. The onus must rest with the person who breaks the law. If a person breaches copyright law, he or she should be held responsible, not the service provider who allows that person to use a photocopier.
I take what Senator Cox said very seriously. As Senators Quinn and Cox said, there are copying facilities on the corner of every street, but Senator Quinn mentioned that notices warning people that they should not breach copyright law could be put on photocopiers. That is not a great deal to expect.
Such a notice may be knocked off the machine or become worn.
There could be a liability on a person to ensure that such a warning is displayed on the machine. Such a liability applies in numerous instances, such as no smoking signs. One has a liability to ensure that such notices are in place. It is not much of an argument to state that a warning might be knocked off a machine or it might become worn.
I have been at one with my colleagues during most of the debate. Many Members will have noticed that I am not very happy about much of the Bill's content, but it contains a long list of exceptions under which copies can be made. If one had to put a notice on a photocopier to state the legal position, such a notice would probably cover the top surface of the machine. One could put a notice on a machine warning people against breaking copyright law by using the photocopier, but very few people would have a clue as to what would constitute a beach of copyright law. A person might want to copy an article from this morning's The Examiner to send to a relative in the US and that would probably not be in beach of copyright law. It would be almost impossible for a person to explain properly to customers what was in breach of copyright law.
I am at one with Senator Mooney that we should not allow people to benefit commercially from another's work, but we are making such detailed provision on this matter that it would need a "Big Brother" to police it, in which case we would end up with somebody having to have access to home computers. Microsoft did this with Windows '95 and Internet Explorer. If one were to let them, they could check every piece of software on the hard disc and follow up with a prosecution if it turned out there was something there that one should not have. People caught onto that very quickly. It was an awesome cheek on the part of Microsoft, but it is very good at awesome cheek.
In terms of the law and a genuine concern for intellectual property, it should not be commercially exploited by others. We should not let the wonderful anarchy that exists in copying from the Internet and other sources worry us too much because it will not cost anyone too much money at that level.
I thought I was being modest in my amendment. It did not suggest that a sign should be put on every photocopying machine. I thought the wording was good. It reads ". to insert", provided that the person who provides such facilities has taken reasonable care to ensure that the facilities are not being used to infringe the copyright in any work being copied." In tabling this amendment, I had in mind the description mentioned by Senator Cox. She said that video shops refuse to make copies of tapes. They know it is illegal to do so. I am concerned about ads in shop windows stating that photocopy facilities are available for copying material, which, effectively is in breach of copyright law. I tabled this amendment to discourage people from doing that.
I thought the wording of the amendment was mild and that it would prevent people from doing that, provided that those who provide such facilities have taken reasonable care. That is a moderate and workable provision. I hope the Minister of State can accept it.
I suspect that in the institution in which I work there are approximately 1,500 computers, all of which are facilities for enabling the making available to the public of copies of a work, particularly computer games. In another three or four years we will probably have 400 or 500 CD-ROM copiers. According to Senator Quinn's amendment, how can we take reasonable steps to prevent those machines being used to infringe the copyright in any work? Bill Gates would have a ball at our expense because he could have us in court for the next 20 years requiring us to prove that we had taken reasonable steps to ensure that the 2,000 or so various items of equipment in that institution were not being used to infringe copyright in any work. The scale of the equipment is so great that one cannot regulate in this way.
I thank the Senators for their comments. I understand the concerns expressed by Senator Quinn, but it is considered that the mere provision of physical facilities for enabling the making available to the public of copies of a work does not of itself constitute an act of making available to the public copies of the work. This means that service providers will not be held liable for any infringement of copyright via, for example, the Internet. We are in agreement on that.
The relevant act is the making available of a work. We are talking here about making available, not copying and not the mere provision of server space, communications connections or facilities for the carriage and routing of signals. In this regard, I do not consider it equitable or practicable that it should be incumbent on service providers to monitor all materials – this is the point Senator Ryan made – transmitted via the Internet, as is being suggested in the Senator's proposed amendment.
I ask Senators to read subsection (4) which clarifies what we are trying to do. If service providers are informed that their facilities are being used to transmit infringing material, they should remove such material as is practicable or they should also be held liable for that infringement. That is the aim behind the "notify and take down" provision contained in subsection (4), which will be useful in the fight against copyright pirating. That is what we are agreed on achieving in such circumstances. The amendment proposed by the Senator goes too far in this regard.
I move amendment No. 17:
In page 40, subsection (4), line 6, after "subsection" to insert "retains control over the copies so made available and".
This has probably been dealt with already. Will this section cover the making available to the public of copyright material in exhibitions? This could inhibit institutions which lend material, etc., and may deter the owners of works from supplying them for exhibit. I want reassurance there will be no problem in this area. I was also worried that this might cause a problem with photocopiers but that is not the case. Will there be any problems with the supply of copyright material for exhibition by major institutions – the Minister knows the institution to which I refer?
The Senator's question would be more appropriate to the exceptions area. I will consider her proposal, although I cannot accept it now. The intention of this provision is to secure for rights holders a general remedy to require that infringing material be taken down from facilities which might be used as media for infringement. This would include the so-called "cached" copies which facilitate the operation of the Internet and which could perhaps be said to be retained or under the control of the operator of the facility. However, Internet service providers might debate the accuracy of that statement. There is the possibility of other copies of infringing material existing on facilities, including some types of technical copy where the issue of retention or control might be more doubtful. I thank the Senator for putting down this amendment. I will consider it. I am concerned that a provision along these lines could undermine the purpose of section 39(4), a possibility I must bear in mind.
I thank the Minister. He will probably be able to work it out better than I can. I saw a difficulty with it.
I move amendment No. 17a:
In page 40, subsection (4), line 7, after "concerned" to insert ", or by a member of the Garda Siochána or by any other person, or otherwise becomes aware".
This amendment proposes to strengthen the culture of compliance about which I spoke earlier. It is far too narrow to provide that a person is able to claim ignorance because he was not specifically informed by the copyright owner only or someone acting on his behalf. This amendment would greatly reduce a person's ability to claim ignorance of wrongdoing and would be welcomed by anyone genuinely interested in ensuring compliance with the legislation. It is not sufficient for a person to say he did not know he was breaking the law because he was not told by the owner, or someone acting on his or her behalf, although the legislation specifies the owner only. Unless this is covered somewhere else in the Bill, it should be sufficient for anyone to tell someone he is breaking the law.
I disagree with Senator Quinn. If one thinks this through in terms of the Internet, every crank in the country could use copyright as grounds for complaint. The thrust of this Bill is that once an assertion of copyright is made, the onus is on the person accused to prove otherwise. One could have large numbers of people scouring the Internet and using copyright law to prevent Internet service providers from allowing people access sites. The Chinese Government uses copyright and other legislation to prevent access to selected sites so people cannot acquire information. I would be worried that broadening this provision to include others, apart from the owner, would be a recipe for cranks to make life difficult for those providing Internet services.
I thank Senator Ryan for his suggestion. Civil actions should be pursued by copyright holders. Section 122(1) provides an infringement of the copyright in a work is actionable by the copyright owner. Therefore, it is appropriate that only the copyright owner is in a position to pursue the infringement of copyright, for example, via the Internet. We are talking about civil actions so it would not be appropriate to involve the Garda.
Section 39(4) states "Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner ..". I do not understand why that person must be notified by the owner of the work concerned. If he is notified by anyone else, that should cover it. I thought my amendment was sensible. I was not suggesting that anyone other than the owner should pursue the matter in court. It seemed to me that if someone else drew his attention to it, that would be sufficient. I thought the Bill would be strengthened by this.
On subsection (4), I am concerned that we are shooting the messenger because we do not like the message. The subsection states, ". . . where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove the infringing material. . .". Subsection (3) refers to the provision of facilities for enabling the making available to the public of copies of the work. This is difficult territory. We are talking about web access, which involves a web server. If the web server is a commercial entity, we can identify it. However, the Internet service provider is also making facilities available for enabling the making available to the public of copies of the work.
It would not be right to put an onus on Indigo, Tinet or any of the other ISPs to take responsibility for copyright, other than on the website space they provide to their subscribers. I am not sure that the Bill recognises that reality. Many people in the States have their own websites on their own computers – this also applies to academics. If they have copyright material on their websites, it is their responsibility. It is similar to two people listening to a piece of music on a telephone line, which may well be a breach of copyright. However, Telecom Éireann cannot be blamed for it as it cannot be listening all the time to see nobody is breaching copyright. There is a difference.
We only shoot the messenger if he is informed his facilities are being used. The Senator also raised this point on Second Stage.
I could not find the relevant section at the time.
If there is any way in which I can accommodate this distinction at some stage, I will be glad to do so.
Is the Minister saying it is not the intention to put an onus on Internet service providers to regulate copyright of material which comes through their facilities but not from one of their websites? I am happy if Tinet is told that any material on any website for which it is responsible should not be in breach of copyright. I am concerned about any suggestion that it would have to police copyright once it is notified of material coming through its service but not originating from it.
My point is more tangible. I wish to be quite sure there is no problem if copies go out of the control of the person providing the copying facilities before he or she knows the material being copied is copyright.
I support the point made by Senator Ryan about an Internet service provider who is informed their service is being used to infringe copyright but who is unable to control that. A service provider cannot control how that service is used by other people. It would not be fair to expect such providers to stop such activity and to make them liable for such breaches of copyright. This is an issue of control. I ask the Minister of State to re-examine it if it is not covered later in the Bill.
I am glad the Senator has sought that clarification. The word "control" is very important. A service provider is liable if he or she has control; the courts would not be involved if the provider did not have control.
I move amendment No. 17b:
In page 41, subsection (1)(b)(i), lines 11 and 12, to delete "or a model for a building".
I understand why it would be appropriate to have a rental right under copyright law for a building, since a building is commonly rented for purposes totally unconnected with the building as a work of art. However, I cannot see why this would apply to a model of a building. I can easily imagine circumstances in which a building model might be rented out for exhibition purposes but I do not see why the same rental rights applying to any exhibit should not apply in such cases. Perhaps the Minister of State can explain to me why this should apply to a model of a building.
Article 23 of the rental and lending directive specifically excludes buildings from the scope of the rental and lending right to avoid a situation where, for example, architects could prohibit the rental of living space by the owner of a building. Similarly, an architect should not be able to prohibit the rental of a model of a building. However, we will give this matter further consideration.
What is a work of applied art? Why is it excluded from the provisions of the section? The Minister of State can blame Senator Quinn who set me thinking. Section 41(1)(b)(ii) excludes a work of applied art from the references to be construed as including references to rental or lending.
Could the Senator give me a moment?
Perhaps we should take a brief sos for ten minutes, given that we will be here until midnight.
The Senator should feel the pain.
I hope the Senator is not going to force me to call a quorum. Could we have a brief sos now for ten minutes or at 10 p.m.?
The business of the House has been ordered and cannot be changed unless an amendment is made to it, which I do not intend to do.
I formally propose we take a sos at 10 p.m. for ten minutes – or now, if it suits the Minister of State.
It is not possible for me to take the Senator's proposal. A proposal for an adjournment must come from the Leader of the House.
Therefore, I will call a quorum to allow us a ten minute break.
As Acting Leader, can I propose a sos until 10 p.m.?
I thank the Senator.
Having consulted my officials, I can inform the House that a work of applied art refers to a work of art applied on to an object. A painting on a plate would be a work of applied art.
I have an attachment to the great art galleries of the world and I have been in many of them. They are full of works of art which are on things other than sheets of canvas. The enormous amount of modern art in any modern art gallery, particularly the art of the last 50 years, is not done in conventional forms. I was at the Biennale in Venice three years ago and the exhibition was the most breathtaking I had ever seen. Very little of it, however, was conventional. There is no reason to suggest, if that is what the phrase applied art means, that it should be different from conventional art. For a Bill which is supposedly technologically neutral, it is also a very technology specific thing. I suggest to the Minister that the wisest thing would be to undertake to review this and return on Report Stage with an appropriate amendment which explains what it is.
The thinking is that if one had a painted plate, the object is that which one could lend without worrying about the copyright on the art. The plate would be lent without any concerns about the artistic work. The plate is lent, not the work of art.
I have a simple request for the Minister. Will he amend the definitions in section 2 to include a precise definition of applied art? This has caused considerable confusion. The Judiciary and citizens are entitled to know what is meant by that phrase. I was confused by it and I suspect that the Minister was confused by it. It would be best to give a commitment that a definition of a work of applied art would be added to the list of definitions in section 2. I would be happy with that. I am unhappy with undefined phraseology. The Minister may say what is meant but there is no one in this House who would say that is what they thought it meant. We all had our own ideas about what it meant.
I am tempted to say that we should leave this to the Judiciary. We took some time to look at the matter and I will see what can be done.
I am not happy with that. The Minister can tell us that he will insert a definition into the Bill. If he knows what it is he can do that. It is clear that this is a confusing phrase. The sensible thing, therefore, is to remove it if we do not know what it is, and if we do know what it is, put it into the Bill. I am not interested in the Minister saying he will look at it. That is not good enough. I am not being obstructive here but this is an issue which caused considerable confusion before the break and continues to cause confusion. There are two solutions – take it out or define it. Either would satisfy me but a vague undertaking to look at it again when no one knows what it means is not good enough.
I have been advised that we could leave it to the Judiciary to make a judgment. I would need legal advice before I could give the commitment the Senator seeks. I am making a commitment that I will come back to him on Report Stage on this matter. That is as far as I can go.
I am a mere backbencher and I operate on very simple rules. Things should make sense and if they do not, I ask the Government or sponsor of the Bill to explain them. It does not make any more sense now than it did a quarter of an hour ago. I am not trying to rub it in, I am trying to do my job. I do not accept that it should be left to the Judiciary. There is a large number of judgments by the Supreme Court vigorously reprimanding the Oireachtas for the number of occasions on which it has left the Judiciary to legislate. The judges are becoming more irritated about this. It is the wrong way to deal with legislation. Either this phrase means something or it does not. If it means something, put it in, if it does not mean something, take it out. The Minister cannot have it both ways. There is no need for legal advice to agree to insert a definition. I am not asking the Minister to give me the definition. He would need legal advice for that. It is a political decision whether to insert a definition. The formulation of the definition is a matter for legal advice. The political decision is whether he is prepared to insert the definition. That has nothing to do with legal advice.
I accept that this is a difficult section which has led to this difference of opinion. I very much support Senator Ryan. The purpose of legislation is to provide definitions and avoid doubt. There should not be undefined phraseology in the Bill, but there is in section 41. I accept the Minister will come back with legal advice but the difficulty for us is that we cannot have it until Report Stage. We are increasingly running into difficulties with the Bill, which is nobody's fault. As the night goes on, it is not conducive to good work in regard to the Bill. I do not know that we should sit so late to deal with it. As I said earlier, it would be better if we awaited the advice the Minister needs. I accept that the Minister will come back with legal advice on this section and I take it we will get it on Report Stage.
The answer is yes. The rental and legal directive includes a provision in Article 23. This directive does not cover rental and lending rights in relation to buildings and works of applied art. The Senator called himself a humble backbencher but it is fair for me as Minister to say that if he is going to raise an issue, as he is entitled to do, he should produce an alternative if he has one. I know that can be difficult. If the Senator is going to ask me to produce an alternative, or to give a commitment to give him an alternative, then it is reasonable for me to question why an amendment to this provision was not tabled or why an alternative was not produced.
Having said that, I gave a commitment, which Senator Coghlan reiterated, to get legal advice. I quoted the directive which shows why it is there in the first place. Clearly, I need legal advice to get clarity on this measure. The advice may be that we are precluded from defining something which is not defined in the directive. This goes back to the issues we discussed earlier. I will give the Senator a commitment to come back to him. Obviously, I need to get legal advice on this matter, otherwise I would be going back on my word, and I do not want to do that.
If I do not understand something in Government legislation, it is not my obligation to produce a definition of something I do not understand. It is getting late and I suppose all of us are getting a little frayed but the point is that if there is no definition of "applied art" in the directive, we are entitled to include a definition. If the EU did not see fit to tell us what it means, then we are entitled to put a meaning on it. If the EU gave it a definition, then let us include it in the Bill. We should not, as a matter of common sense and good practice, include wording in legislation the meaning of which we do not know. I have not accepted this in any legislation with which I have dealt and neither the lateness of the hour nor the slowness of progress is going to change my mind.
The Minister should say that, if he cannot get a definition, he will take it out and that if he has to leave it in because of an EU directive, he will ask the parliamentary draftsman's office to produce a definition of applied art to include in the Bill. That is not an unreasonable request. I am not asking him to produce a definition now. I am simply saying that he accepts what we said, that is, that we do not know what it means. That is a good reason to get a definition.
We are coming closer together in the sense that we both want clarity, which we have been saying since the start of this debate. I also talked about user friendly language so I share the Senator's views on that. We are coming together with regard to what we both want. I reiterate that I will come back with clarity having sought legal advice. Is that acceptable to the House?
I support Senator Ryan in that we must get a definition. I cannot remember art classes as they were long ago but an object of applied art was a useful object with individual artistic or decorative merit. There were various definitions but they were as simple as that. I remember art deco and nutcrackers being described as such and copyright would be required if sending out for rental or lending.
I have given the explanation of work of art applied as a painting. We used the example of a painting on a plate.
It needs to be expanded.
We will come back with clarity which, from my point of view and that of Senators, is desirable.
There is a problem here.
We are becoming involved in much repetition.
Do not provoke me. If the Minister comes back with nothing on Report Stage, I cannot ask him a question about nothing. He cannot come back with an extensive verbal explanation. There is no provision on Report Stage to come back with a verbal description which does not constitute an amendment to the Bill. All we can discuss on Report Stage are amendments to the Bill. I am not going to do the Minister's job because I do not know what it means. I cannot be expected to produce a Report Stage amendment on this issue.
I am seriously tempted to call a vote but since that would get the Minister off the hook because the matter would be disposed of and we would not be able to do anything on Report Stage, I will not do so. The reason I am testing the Cathaoirleach's extensive patience is that there is no procedure on Report Stage for the Minister to come back with clarity other than by way of an amendment. If the Minister cannot give me a definition, he cannot give me clarity.
I support the Minister. He said clearly he will come back to provide the clarity requested. If he is unable to include a definition, for whatever reason, he will give that reason. I presume if he is looking for legal advice on it, he will be precluded for doing it for that reason. I presume the Senator will accept the Minister's word at that stage that it is something he cannot do. How much further can the Minister go?
He can say he will ask the parliamentary draftsman to give him a definition of "applied art". That is not against the law. I will not be bamboozled by legal advice and other matters. I am not trying to waste time. This is a political not a legal decision. The legal decision is the wording, and it could be difficult because we already have a problem with the Internet, which should be left out completely.
This phrase was taken from a directive in whose conception our Government participated. Somebody in a Department went through this directive and advised a Minister that it was all right. It then came back and sat in various Departments. Some parliamentary draftsman looked at this directive and picked up that phrase. It is our job, as legislators, to say to those people that if they want us to accept that phrase, they should give us a definition.
There is no other way of clarifying this matter other than on Report Stage. To make it as difficult as possible, I will produce a definition on Report Stage which we can discuss. It will take a long time to get it out of this House if we do not deal with it. I accept fully the Minister's word. I know he is not misleading me but he is wrong and he has the capacity to give a commitment to introduce a definition of two words into this Bill. He is in charge of it; I am not.
I thank the Senator for his contribution. I want to be accurate in everything I say and fulfil every commitment I give. If the legal advice is that a definition is needed, then it will be drafted. If the legal advice is that a definition is not possible, then there is nothing I can do. I will come back to the Senator on the matter.
Let me be clear.
I think we have progressed the matter as far as is possible.
I suspect we have, so I will be brief. I find it impossible to believe that those who are employed by Government to draft legislation would advise a Minister that it is impossible to define a phrase in a Bill the Minister is being asked to bring through the Houses of the Oireachtas. I am not disputing the Minister's honesty, I believe this may have been said to him previously. I am no admirer of the drafting abilities of those who draft legislation. I am not talking about the Minister's officials, I am talking about those at one further remove who have the job of putting the wording into legalese. I believe this phrase was included because no one thought about it. It is an omission and should be dealt with by way of putting in the definition.
I move amendment No. 17c:
In page 42, subsection (2)(a)(ii), line 25, after "work" where it firstly occurs, to insert ", including a single work which uses as a framework the characters and situational background of a series of works, notwithstanding that the single work contains material that is entirely new,".
This amendment proposes to include in the legislation a phenomenon known as "novelisations". Let us say that someone writes a Glenroe book that is not an adaptation of any particular episode of the television series, "Glenroe", but uses the characters and overall situation from "Glenroe". I do not believe that this case, which clearly needs to be protected, is protected by any existing provisions in the Bill. The Minister may say it is. If so, I would be pleased if he would tell me where it is covered. The concept of "novelisations" concerns the use of fictional characters from something else in the general situation of a novel. It seems to me that this is not protected.
I thank the Senator for his amendment which proposes to have the term "formatting" considered as an adaptation of a work. However, what is protected by copyright is not original thought or information, but original expression of thought or information in some concrete manner. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must, to be liable, have made a substantial use of this form. He or she is not liable if he or she has taken from the work the essential idea, however original, and expressed the idea in his or her own form, or used the idea for his or her own purposes. Protection of this kind can only be given, if at all, under the patent law, or by invoking the principles applicable to confidential information, or passing off, for instance. Therefore, I cannot accept the amendment.
My advice is that the term "novelisations" presents problems in that it does not appear to be protected anywhere in the Bill. I have also been advised that "novelisations" are common practice whereby you use characters and a general situation from fiction to create a new work. Concern has been expressed that this is not protected and I had hoped the Minister would be able to tell me where it is protected. On those grounds, I express my concern that the Bill is faulty if it does not protect the area of "novelisations".
The issue of adaptations deserves our attention. While I cannot accept the amendment, I assure the House that I will consider the matter further.
I move amendment No. 17d:
In page 42, subsection (2), between lines 28 and 29, to insert the following new subparagraph:
"(iv) a version of a work which is a condensation of the original work;".
My amendment proposes that a condensation or form of adaptation needs to be specifically protected. These are quite different in form from any other kind of adaptation. Without specifying them, there could be a doubt as to whether they qualify as an adaptation. The amendment proposes a version of a work which is a condensation of the original work. Perhaps it is protected somewhere else. However, I have been unable to find it and my advice is that the amendment is necessary.
I thank the Senator for his amendment. My advice is that it is considered that "a version of a work which is a condensation of the original work" is provided for in the section with the use of the expression "translation, arrangement or other alteration". I will be pleased to obtain clarification on the matter and to consider it further. I am anxious to have the language watertight.
May I express my concern? This House is considering this Bill, it is trying to get to grips with it and to make changes. The Minister is saying he will consider it, but I get the impression he will not consider it for Report Stage in this House. I understand there is a rush to get Report Stage through, perhaps as early as tomorrow. I am not sure this is being fair to the House which has put a lot of work into the Bill. When we table amendments we are told that they will be given every consideration, that they will be brought to the other House rather than this House. I am concerned that the work this House has put into the Bill will be adjusted in the other House. I would like Report Stage to be delayed so that these matters could be considered in this House.
This is a reasonable amendment. The Minister said that there are problems with the definitions and that he would like the language to be watertight. I believe this is the object of the exercise. I respectfully submit that whatever about the possibility of the interpretation outlined, it would put it beyond doubt if it were to include the wording "a version of a work which is a condensation of the original work". I urge the Minister to accept the amendment.
I am happy to accept amendments if I believe they are necessary. With respect to all those who have worked hard on the Bill, I will not accept amendments merely for the sake of it. As soon as I encounter an amendment which I believe is necessary, I will be glad to accept it. However, I am advised that this particular wording is accommodated in the expression "translation, arrangement or other alteration". We are discussing adaptations and if I thought this measure was required, I would be more than happy to accommodate the Senators. However, I do not think anyone is suggesting that I should accept amendments merely for the sake of it. I am sure there will be many amendments later with which I will agree.
Amendments Nos. 17e, 17f and 17g are related and will be discussed together by agreement.
I move amendment No. 17e:
In page 43, paragraph (b), lines 25 and 26, to delete "otherwise than for his or her private and domestic use,".
The purpose of these amendments is to close the door which the Bill deliberately leaves open with regard to private use. We will never defeat the pirates if we say it is all right to use a copy in private but not to sell or use it for business purposes. Some of the most serious pirating takes place by the private home user as the end customer. If we permit the private use of pirated material, we are condoning piracy in its entirety. I cannot imagine anything less likely to lead to a culture of compliance than to say private use is acceptable.
If I viewed this legislation from an external perspective as a measure of how serious the Irish are in defending copyright, I would take this section as a clear indication they are not serious but are going through the motions in a cosmetic way. It would be disastrous for this country if people got such a perception and we would help them to do so by passing this part of the Bill without amendment.
I know it is not easy to accept. I will be told it will be difficult to enforce and because of that it should not be accepted. However, the reason for the amendment is to send a message that we have a compliance culture. We are trying to say we will ensure a culture which is aware of what the legislation seeks to achieve. We should send that message outside the State. That is the reason behind my amendments. I hope the Minister of State will consider them.
I understand precisely the issues the Senator is raising. The intention of these amendments is to extend the scope of this section to cover importation, possession, custody and control of infringing copies of a work for private and domestic purposes, as well as in the course of business and to cover the making available of such works in the course of a business or otherwise. I consider such a restriction too far reaching, especially in non-commercial scenarios, and it may be impossible to police. We had a debate earlier on private use and we are back to the same issues. I am unable to accept the amendment.
I stress my worry about compliance. This sends out a message that we are not too worried. The reason given that it would be too difficult to police is understandable but is not good enough. I will not press the amendment but I am concerned about the message we are sending. It does not lead to good legislation and is a shame to dodge the issue again.
I am intrigued by an issue Senator Quinn raised in his amendment to paragraph (d). Section 44 states:
A person infringes the copyright in a work where he or she without the licence of the copyright owner .
(d) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the owner of the copyright, a copy of the work .".
Is being made available "in the course of a business, trade or profession" covered elsewhere? What does the exclusion mean? It seems extraordinary that there would be an exclusion for people who otherwise than in the course of a business, trade or profession were making copies available to public. Perhaps it is covered somewhere else and that is the reason it is excluded here.
Section 44(c) covers where it is made available in the course of business, trade or profession.
I must be falling asleep. I am sorry.
I am unhappy with section 45(1). These provisions are written in rarefied atmospheres. Section 45(1) states:
A person infringes copyright in a work where he or she, without the licence of the copyright owner—
(b)sells, rents or lends, or offers or exposes for sale, rental, or loan,
(c)imports into the State, or
(d)has in his or her possession, custody or control, an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it has been or is to be used to make infringing copies.
Does this mean all parents must supervise their children if they have a dual cassette recorder? A child can make a copy from his friend's, perhaps already copied, cassette. Every child in the land is doing it and, similarly, they are copying games on home computers. Are we suggesting there is a legal obligation on parents who know their child is making copies? I am not talking about commercial use, we are talking about infringing copies. A definition of an infringing copy is implied in the section. Does this mean parents must watch their children every time they go near a cassette recorder? That would be draconian.
I have no problem dealing with people who are taking another person's property and making money from it. I have no problem dealing with people making multiple copies of music on a large scale and depriving artists – I am not too sympathetic to the companies – of their rightful royalties. However, most of what young people do – and much of this is done by young people – is harmless and innocent and does not deprive anybody of money because if they did not have the copy, they would not buy the original.
Incidentally, this facility is used widely by older people. For example, it is used extensively wherever there is a record library. People take music from the library, find something they like and make a copy of it on a mini disc or cassette. This provision pushes the protection of property rights a little far by obliging people to ensure nobody uses a cassette recorder to make infringing copies. It is a little severe.
Section 96, to which we have referred, mentions the issue of time-shifting and making legal home copies. That would take account of the Senator's concerns, which I share. The Senator referred to a young person recording on a double cassette recorder. That is accommodated in section 96. Section 45 does not deal with such cases. It refers to a person who has in his or her possession, custody or control, an article specifically designed or adapted for making copies of a work, knowing or having reason to believe that it has been or is to be used to make infringing copies. That is different from the legitimate case of the young person with the double cassette recorder to which the Senator referred who is provided for in section 96.
That would be fine except that section 96 applies only to broadcasts or cable programmes and not to the matters to which I refer. I know Senator Quinn would probably have people lashed for these offences but I take a more liberal view.
I am concerned about practicality. What bothers me about quasi-draconian provisions such as this one is that they would be used selectively. I remember the innocent story of a child who wrote to a computer magazine ten years ago and put his full address on the letter. He stated he had a copy of a particular game he got from his friend. The full force of the software company descended on that 13 year old and his family. The response was wonderful and awesome but it was disproportionate. Neither the young child nor most of his buddies was the cause of the company's financial difficulties.
Section 96 does not cover this issue. Such phrases are too severe and they should not be included in legislation. There is no doubt a double cassette recorder is adapted for making copies. There is no other reason for having a dual cassette recorder other than to make copies. The idea that they would only be used to make legal copies is pushing it too far. We should not get too worried about these things because they are not the threat to the industry it seems to think.
The type of machines the Senator is talking about are designed to make legal copies. Section 96 refers to recording for purposes of time shifting for private and domestic use and to the broadcast or cable programmes. We will discuss that when we reach section 96. I want to protect the type of person the Senator wants to protect who has a tape recorder designed for legal copy. Although I have not seen them, I am sure there are machines adapted for illegal copy. We want to ensure those type of people are pursued.
Nobody should be allowed to have the type of equipment the Minister mentioned. It should be illegal to have equipment designed to make multiple copies for commercial purposes. We are not talking about that because the section clearly states only where the person "knowing or having reason to believe that it has been or is to be used for making infringing copies". It must be something I have in my possession. One of my defences would be that I did not know it was being used for this purpose. If it is for one purpose, which is to make multiple copies, I am either stupid or something else. However, I am not stupid, neither are the people who are making considerable amounts of money from piracy. This is about equipment which could have a dual purpose. The restriction is to require people who own such equipment to supervise its usage to a degree which is draconian. Section 96 does not deal with this. Perhaps the Minister of State could table an amendment, although he seems to expect me to do so.
The Senator could become a ministerial adviser.
I could not afford it.
We are talking about secondary infringement – providing means for making infringing copies. We are talking about machinery that would be adapted to make such copies. The humble tape recorder or double tape deck recorder has multiple purposes. As a teacher, I used them to record children singing but not to make infringing copies. This is pushing the humble tape recorder into a murky area which is unfair to those who use them in their homes. These tape recorders are designed to be used legally. I do not accept that people have double tape deck systems in their homes which are used specifically to make infringing copies.
Amendments Nos. 17h and 17i are related and may be discussed together.
I move amendment No. 17h:
In page 44, subsection (2), line 18, to delete "for hire".
This subsection is too narrow in its definition of "place of public entertainment". Copyright can be infringed by a recitation or the performance of a song at a political meeting which could take place in a venue outside the definitions in this subsection. My amendment corrects that inadequacy. Some years ago Fianna Fáil had a rousing song which was a copy of a French pop song. I cannot remember what it was about.
Was it "Arise and follow Charlie"?
No. It was a catchy French song and the French owner discovered that Fianna Fáil was using it. I am sure they came to a settlement or arrangement.
In a brown envelope.
If a copyright is broken, the gathering should not be limited to a "place of public entertainment" or premises made available "for hire". This is an attempt to improve the Bill.
These amendments seem to strengthen the provision dealing with the secondary infringement of copyright – permitting use of premises for infringing performances. To achieve this, amendments to the definition of "place of public entertainment" are proposed to ensure that any person who gives permission to allow premises to be used whether for commercial or non-commercial purposes for any type of gathering, not just for reasons of entertainment, will be held liable for infringement of copyright. Such a move may be too restrictive, particularly in non-commercial situations.
I understand it may be too restrictive, but the Minister of State has not given a satisfactory explanation. The phrase "made available for hire for the purpose of public entertainment" means that if it is not for public entertainment, it does not infringe copyright. I do not understand that and I wonder how the Minister of State intends to solve that problem.
Is a doctor's waiting room covered by this legislation? While it is not a place of entertainment, it could be used for commercial gain. I know of people who have run into trouble in this regard in the past.
This issue deals with the hire of premises in relation to secondary infringement – permitting use of premises for infringing performances.
Does that not limit it too much? The subsection is too narrow in its definition. I was trying to help the Minister of State by saying it does not have to be limited to public entertainment. It could be a gathering of any kind and the premises does not have to be for hire. I do not understand why the Minister of State is unhappy with it.
Amendment No. 17j in the name of Senator Quinn. Amendments Nos. 17k and 17l are related, so amendments Nos 17j, 17k and 17l may be discussed together by agreement.
I move amendment No. 17j:
In page 44, subsection (1)(i), line 31, after "thereof" to insert "or at any later time before the infringement took place".
The reason for these amendments should be obvious. The time that is critical is not the moment of hiring but the time of infringement. It is quite possible that the stated knowledge of the person concerned could change fundamentally between the two times. We should not apply the principle "out of sight, out of mind" in this case but expect the duty of responsibility to extend all the way up to the moment of infringement.
I hope I have explained it fairly well. In page 44, I am seeking after the word "thereof" to insert in line 31 "or at any later time before the infringement took place"; and after "permission" in line 41 to insert "or at any later time before the infringement took place"; and after "it" in line 45 to insert "or at any later time before the infringement took place". I am trying to ensure that we avoid litigation afterwards. This will make sense because there is a vagueness about it as it stands.
I can appreciate the Senator's efforts to strengthen the provisions on secondary provisions of copyright by permitting use of apparatus for infringing performances. I would question the practicality of these amendments which appear to try to cover the intervening period between the infringement taking place and the time the apparatus was supplied, which was used to infringe copyright at the time permission was given for the apparatus to be brought on the premises which was used to infringe copyright or as the case may be at the time a copy of a sound recording or film was supplied which was used to infringe copyright and whether the person concerned was aware of likely copyright infringement during that period. I am concerned the amendments may place an overly burdensome and unfair onus on the person concerned to check for possible infringements of copyright and would be disproportionate to the infringement in question. I note that the Senator does not appreciate it when I say I will consider matters but I can say that I will consider it. I have outlined my position quite clearly where we think there is an unfair onus on the persons concerned to check for possible infringement of copyright and this could be disproportionate to the infringement in question.
I understand what the Minister is saying but section 47(1)(i) refers to "a person who supplied the apparatus, or any substantial part thereof if, when he or she supplied the apparatus or part thereof. . ." It seems it is not just that point but the point where the infringement took place. I think it makes sense and I do not quite understand why the Minister does not accept it, because it is trying to do more effectively what he is attempting to do.
We are concerned that we could be putting a very heavy burden on the supplier of the apparatus. My advice is that it would be unfair and disproportionate.
The Minister can get me out of the confusion I am in. As I demonstrated at an earlier section, I may not be functioning as well as I would like. Section 47 deals with secondary infringement, permitting use of apparatus for infringing performances. It does not say anywhere that I could find that it would be apparatus that would be hired. It might be apparatus that would be purchased. Do I understand that if a television dealer in my home town of Athy sells a television to a pub he has to first of all check with the pub that it is licensed under the terms of copyright and if he does not check that he is also liable for the breach of copyright by the publican?
On a point of clarification, I am sure the Minister will clarify this, but I would be very surprised if the question raised by Senator Ryan would have any force in law. The Irish Music Rights Organisation would be charged in this country with protecting copyright and in the first instance it would seek a licence from the publican if he were using the television in order to provide a service for his customer and the television was being used in a public place in order to attract custom to his premises, as distinct from a television set being placed in a private part of the house. To give an example, some years ago Mr. Murdoch of Sky TV initiated proceedings against the vintners in both Britain and Ireland who had been increasingly using Sky Sports to entice customers into the public house and they now have to pay a public performance royalty for the use of Sky TV. Similarly where a device is used for the purpose of public performance, where there is financial benefit, the rights of the composers and authors and publishers must be protected. I would be grateful if the Minister would clarify that this would be the case in this instance.
My other question on section 47 relates to the question of apparatus, which has been permeating the debate and I have no doubt will continue to the end, and the Internet. Some information in an article inThe Irish Times of 16 November 1998 is both frightening and interesting:
Some three million music tracks are downloaded from the Internet every day. This figure includes samples offered legitimately by record companies but also material from other sites which allow pirated copies of songs to be downloaded in breach of copyright.
There is a device, which I was not aware of called the MP3 which operates on the basis that you can download on an MP3 which stores sound files on computer with relatively small file sizes, but near perfect quality – reflecting on Deputy Quinn's earlier comment. It is popular because older file formats allowed high quality sound recordings but required huge files to store it. As a result of this technology there is another apparatus, a hand-held player similar to a walkman called a Rio, which can be used to store MP3 tracks and play them away from a computer. Two companies, one which operates from Sligo, Saehan, and Samsung are among the manufacturers promoting these players. I am making this point in the context of section 47 and infringement of copyright and the use of apparatus. While the law is rushing to plug the holes, it is a bit like the little boy who had his finger in the dyke; as he stops one hole another one appears.
I am not trying to open up the philosophical argument as to the proactive approach the Minister can take, but can he assure the House that the detail of the section will go some way to covering the points made by Senator Ryan and me on the use of apparatus as it relates to the Internet?
I thank the Senator for his contribution, but there is no ready answer as it is very much a developing area at national and EU level. The Senator has clarified some issues in regard to the role of IMRO, which is appreciated.
In response to Senator Ryan's question, my understanding is that it does not matter how it was supplied. The real issue refers to the fact that he or she knew or had reason to believe that apparatus was likely to be used to infringe copyright. It is a knowledge test. The question of how it was supplied is not relevant in this section.
I want to know how the people who give the Minister legal advice could suggest to him that a television dealer would know if someone was going to use a television to infringe copyright. Was there no IMRO sign in the window? Does it mean that they knew there was a row going on between certain pubs and IMRO about the sometimes peculiar claims by IMRO with regard to areas of traditional music? For instance, if a publican has a row with IMRO because he has traditional music sessions and IMRO is trying – quite outrageously sometimes – to extract money from them for playing copyright tunes that were never copyright in the first place—
On a point of information—
The Chair does not recognise points of information.
On a point of order, in the context of this debate I remind Senator Ryan that he is going down a road that has been well travelled. There is no question of the scenario he is painting being realised because Comhaltas Ceoltóirí Éireann and IMRO have reached an agreement on this matter. If Senator Ó Murchú was present he would confirm that.
That is not a point of order.
That is another red herring. I want to move the debate along.
I am glad my colour is recognised. Comhaltas Ceoltóirí Éireann does not own traditional music. It can make all the agreements it wants but they do not solve the problems.
I look forward to dealing with this section when we reach it.
The tunes are the property of the people. They do not belong to any organisation, neither IMRO, Comhaltas Ceoltóirí Éireann nor anyone else.
What about copyright?
I am trying to understand the connection between Comhaltas Ceoltóirí Éireann and section 47.
There is none.
If Senator Ryan is not careful we will burst into song.
If the Acting Chairman was here as long as I am he would realise there is a connection between every section of this Bill and everything else in the world.
Members could connect anything at this stage.
Senator Ryan is not interfacing.
Senator Mooney raised an interesting point about the Internet and access to it. Everyone knows the Internet is awash with material that is in breach of copyright.
I seem to recall discussing this issue two hours ago when I was in the Chair.
Senator Ryan wants to continue going around in circles.
Come back tomorrow.
The last thing I want to do is to clash with the Chair in the abstract. I particularly do not want to clash with the Acting Chairman. We are talking about secondary infringement through public performance of work via the Internet. Senator Mooney raised the point but he is now regretting having done so.
No, I am not.
What about Internet cafes? The person who supplies computers to Internet cafes knows that some of them will be used in a manner which will breach copyright. Users will download material from websites which will be in breach of copyright. Is the person who supplied the computer guilty of a secondary infringement of copyright?
Senator Ryan is being slightly disingenuous because we dealt with this issue earlier. There is no suggestion in this part of the section that the person who supplies computers to Internet cafes is breaking copyright rules. That person does not break copyright rules unless he or she advertises outside the door of the cafe and asks people to come in and download material free of charge or for a price. They are okay as long as there is no intent or profit for them. The example of an Internet cafe is a red herring.
Red is the appropriate colour.
This is the same argument put forward by Senator Ryan in relation to the 1,500 computers in Cork Regional Technical College. He wondered whether Cork Regional Technical College was responsible for the use of those computers where people copy disks. On that occasion we agreed that it was not.
I call Senator Coghlan for a herring of a different hue.
Senator Ryan is rather sober suited because he is not wearing a hint of red or pink.
I have a lot of sympathy for the points raised by Senator Ryan. I am glad IMRO came to an arrangement with Comhaltas Ceoltóirí Éireann.
We all were.
These collection agencies, of which IMRO is the largest one—
The Mechanical Copyrights Protection Society is another one.
People know more about IMRO. As a result of the heavy-handed manner in which it was able to visit shopkeepers and other outlets I have to agree with Senator Ryan. I am not sure we have got everything right because we have shifted the burden of proof. I do not like the way collecting agencies can issue invoices demanding moneys without showing the necessary proof that they can do so.
I want to explain to Senator Cox that I objected to one of Senator Quinn's amendments because of the impracticality of supervising 2,000 computers. With regard to this amendment, I object to an attempt to blame the person who sells a television or a computer. The seller knows that a computer connected to the Internet will be used to breach copyright.
That is not what is happening.
Section 47(1) reads as follows:
.the following persons shall also be liable for the infringement:
(i)a person who supplied the apparatus, or any substantial part thereof if, when he or she supplied the apparatus or part thereof—
(I)he or she knew or had reason to believe that the apparatus was likely to be used to infringe copyright.
That means that if I supply a pub with a television and know or have reason to believe that it will be used to breach copyright, then I am also guilty of an offence even though I only sold a television that I knew would be installed in a pub. If I sold computers to an Internet cafe then I would know, as everyone knows, that the Internet is awash with material.
Not everyone knows that.
Senator Mooney mentioned the amount of music on the Internet, some of it illegally. I am trying to make the point that this section shows sloppy drafting. The section should be tightened up to make it clear that we are not trying to penalise people who sell ordinary items such as televisions and computers in pursuit of ridiculously draconian copyright provisions.
On a point of clarification, it might be helpful to Senator Ryan if I read out a portion of an article. It reads as follows:
This illegal downloading is going to become more common following a decision of the US Federal courts in the Recording Industry Association of America (RIAA) versus Diamond Multimedia to refuse to ban the sale of an MPMan device called the Rio.
The RIAA is well known in music circles and I referred to the Rio earlier. The article continues:
The Rio allows users to download music from the Internet in digital form (known as MP3 files) and listen to it as they move around. . . . . Although the US music industry has indicated that it will appeal this decision to the Supreme Court, its prospects are not good. This litigation is similar to failed attempts to ban the sale of video recorders back in the 1980s (in Sony-v-Universal).
The RIAA lost the case when it took it to court. Sony refers to Sony Music and Universal refers to the film company. The obvious implication of that case is that the film company did not want anyone to copy films free of charge as we do now. All of this information originates from an article written by Denis Kelleher and published inThe Irish Times on Monday, 16 April 1998. He is a copyright law and law reform expert and he has written a number of articles for The Irish Times. One of the articles concerned traditional music and Mr. Kelleher has been very helpful to me in clarifying a number of legal cases. This area is riven with legal complexities. Mr. Kelleher's article states:
Using such a device in Ireland to download and play pirated music would be illegal, as in the US. However, enforcing copyright laws against millions of individual consumers is not practical, so the music industry has tried to limit the distribution of pirated music.
That is the current position.
Senator Ryan is seeking clarification on the issue of whether a person knew or had reason to believe that the apparatus was likely to be used to infringe copyright. Unless there is clear reason to show that the dealer knew or had reason to believe that the equipment would be used to facilitate a secondary infringement, then the dealer would not be subject to a burden. We are talking about an exceptional situation and secondary infringements by means of public performances.
The idea that someone who sells a legal piece of equipment such as a television or computer could end up having to prove in a civil action that they did not know it was to be used for illegal purposes is an extraordinary reversal. It is astonishing, disproportionate, draconian and wrong, and it places the burden in the wrong place. We need a more even balance. Someone who sells a television as a television or a computer as a computer should not be responsible for breaches of copyright carried out by those who buy the equipment. That is nonsense and disproportionate.
It is an infringement of copyright to record on video television programmes, films and so on. However, this happens all the time. Every newspaper prints the code numbers for doing so. I have not been successful in mastering this technology but it is possible. I have just about managed to play films. A newspaper will include a number beneath the name of a film title which one dials into the video recorder to record the film.
It is called video coding – video plus.
I presume it is illegal.
It is not illegal.
We covered this issue earlier. A person is legally entitled to record films for private use.
Presumably the copy could be made available to others. That would be illegal so the machine would have been engaged in illegal activity. The point made by Senator Ryan is well-founded.
The Minister of State will not explain the proportion. A television dealer can be sued for secondary infringement of copyright if he had reason to believe that the apparatus sold was likely to be used to infringe copyright. What if someone buys a television in Cork because it is cheaper than Dingle and brings it to a pub in Dingle? Does this mean that a dealer is safer selling to a stranger because he could argue about how he could have known the use to which the equipment would be put? Some of these organisations are quite ruthless and will issue writs and invite people to prove the contrary. This is disproportionate and I would vote against this section but that it includes many sensible provisions.
In the extracts I quoted I tried to deal with the impracticalities. At the same time there are basic principles of law involved. "Knowingly" is an important word.
"Reason to believe".
Who are the enforcers?
IMRO I presume, which is not known for its gentleness.
No, not necessarily IMRO. The enforcers could be Sky Television, any of the multinational film companies or national or multinational record companies in the audio or visual field. Senator Ryan is painting a "1984" scenario of "Big Brother" watching every radio, television and video dealer and every item of equipment they sell would be suspect. That is not going to happen in the real world. I accept the Senator's point and I am not denigrating what he is saying but he is portraying a scenario which will not exist.
With regard to the scenario mentioned by the Senator of a television being used in a pub, if that was the case, in the first instance the pub owner would be accused of infringing copyright. If those protecting copyright were to pursue this case further and we are talking about one pub, are they going to take that one individual to court on that basis? They will not do so but will seek to protect their rights by seeking to license that television if it is being used for public performances.
It is not practical to suggest that, in the context of the single case the Senator raised, the law will come down hard on an individual radio, television or video dealer. The law is concerned with outlawing piracy which is widespread and where there is a deliberate and comprehensive attempt to deny the rights of creative people. That is what the section is about and I welcome it. The Minister of State is the lawmaker. I am only putting forward a view contrary to that legitimately put forward by the Senator. At the end of the day the Minister of State is the arbiter.
The Oireachtas makes the law.
I thank Senator Mooney for reiterating the broad thrust of the Bill and we are getting into the nitty-gritty when talking about the apparatus and copying tapes. We are discussing secondary infringements as they relate to equipment. If a copy is made directly or indirectly and subsequently becomes illegal, as would happen if it was sold or rented, the infringement applies to the copy. The machine will not become tainted. The infringement applies to the copy not the machine.
What if the copy is lent to someone?
Sold or rented is the key. Going back to the Senator's earlier point, in introducing this Bill the Government is not interested in the ordinary individual who makes a tape at home and lends it to a colleague. We are addressing the bigger picture and we are getting into rare scenarios. I hope this clarifies the points raised.
I am not trying to be awkward. The wording of the section states: "he or she knew or had reason to believe". The draftspeople obviously saw a difference between "knowing" and "having reason to believe". The latter is a much more vague concept. If the reason to believe existed objectively but the person was not aware of it, there might be reason to believe that the person might not have taken on board that reason to believe and, therefore, would not know. Would they still be involved in a criminal act? That is my first point.
My second point relates to making copies. I will keep it at the simple level of video machines. Videos are available in a series of formats such as PAL and SECAM. It can happen that a person receives a video whose format is not compatible with his or her machine. For example, a friend of mine appeared on a television show in America called "Frasier" and was delighted with himself because he had a substantial part. He sent me a video of the show but the tape was in the American format. I had the original transferred on to a tape with a compatible format so that I could watch it, thereby making another copy.
It is not necessary to do that any more.
Is it not necessary to transfer the tape to a compatible format and, if so, is that illegal?
No, it is not. The video was for the Senator's private use.
This is a very interesting discussion but it is not a debate.
Does Senator Mooney mean that American format videos can be viewed on modern video machines?
The French format is an obscure one which exists only for them because they like to be difficult. If one requests a tape in the European rather than the American format, one might receive it in the French format which cannot be seen on either system.
It can be viewed in black and white.
It is one thing to discuss this matter in academic terms but another to examine the realities. This provision applies to people being pursued by rights owners in clear cases of culpability. It also concerns civil, not criminal, actions. There would be protection for individuals and private citizens in the situations Senator Norris outlined. This will arise later in the Bill, but I wish to assure the Senator in that regard.
A friend of mine took my video to a company to have it converted, so there are companies which do this conversion. They are not individuals but companies engaged in this practice to facilitate individuals. Are they breaking the law?
I am advised that, in those situations, it might be necessary to destroy the original tape. Senator Norris has raised an interesting scenario.
Would the company be guilty of something and would its machine thereby be tainted, which would effectively put it out of business? That would mean the average citizen who could not afford this sophisticated equipment would not have a company to transfer their tapes to the right system. It seems daft that the original must be destroyed. However, I am sure that is the case.
The action in that case would not be an infringementper se so the company would not be in trouble in that situation. I have outlined that the provision applies to cases where rights owners pursue individuals for clear cases of culpability.
The section is out of proportion. It is fine as far as subsection (c) but there then follows an unnecessary list of other people which is wrong and which will ultimately result in small-time television and computer dealers receiving writs from large multinationals which can afford to issue writs to everyone. I will not pursue the matter any further because we will not make any progress on it with the Minister of State.
Amendments Nos. 18, 19, 20, 24 and 26 form a composite proposal and all may be discussed together by agreement.
I move amendment No. 18:
In page 45, subsection (1), line 9, to delete "private".
I am sure that, when the terms "private research" and "private study" are included in the Bill, they are not meant to exclude research conducted for organisations, departments or charities, but they could be held to do so. Concern has been expressed to me by librarians and researchers that this may happen. One would imagine that private research involved only one person. One would certainly think so for private study. However, if one of the Minister of State's officials asked for a copy to be made for the use of the Department, it could not be said to be private research but research on behalf of the Department. The same could be said if it were for any organisation or if a librarian was asked to make a copy, which is normally considered fair dealing, for an individual conducting research on behalf of an organisation, charity or research department. I would be glad if the Minister of State excluded the word "private" where it comes before "research" in all the sections where it occurs. I do not believe he means to exclude organisations or various departments, but there is concern that this will happen and that that is the way it will have to be interpreted.
This is a welcome section but Senator Henry has isolated a problematic area in it, especially from the academic point of view, because we want to know what exactly constitutes "private study". Is it just a scholar in the privacy of his or her study? If it is restricted to that, it would seem to exclude, for example, an academic thesis, which is significant in that it leads to the award of postgraduate degrees and also entails a limited version of publication. At least four copies will be made, one to be lodged in the library where it can be subsequently consulted by students and other scholars, one to be kept by the student, one to be kept in the department and one to be referred to the external examiner.
It could certainly be argued that this is public, especially because the thesis material, although it may never be commercially published, will be available for consultation in libraries and may subsequently be extensively referred to in footnotes by other scholars in their work. Furthermore, academic work is unlikely to have a capacity to generate enormous revenues but may well merit proper publication by an academic press. I would not like to see that stifled either. If this section is allowed to operate in such a way that it permits this limited form of publication, then it will be a blow for intellectual freedom and would get around the type of difficulties of which I spoke earlier regarding awkward customers such as the James Joyce estate.
I doubt if any owners of copyright would be deprived of significant amounts of money. My experience in this area is as a contributor to and editor on three occasions of the proceedings of the James Joyce international symposium, the last of which is still in stock. For the past four or five years I have received regular statements from the United States of America indicating that, although a certain number of volumes were sold, the threshold where I would receive royalties had not been reached. As far as I am aware, one only receives royalties when more than 20 copies are sold.
The example to which I refer represents publication and it is certainly not private. It makes valuable scholarly work available within the academic community. I would like to believe that Senator Henry's amendment would make this possible under this section which involves fair dealing, a concept I take to be similar to that of fair usage to which I referred earlier.
This section is quite interesting and Members may be aware of RTE's concerns about this matter. I would like to quote from a letter conveyed to me by Mr. Kevin Healy in that regard. He states:
The fair dealing provisions which allow a broadcaster to use copyright works for the purposes of reporting current events and criticism and review without having to obtain permission from the copyright owner are limited by the Bill to use of works which have "lawfully been made available to the public". The Courts should have discretion to allow fair dealing to serve as a defence to the use of all forms of works by a broadcaster where justified by the fair dealing provisions. Furthermore, it is not appropriate to have the question of "fair dealing" determined by whether the use is "commercial". Arguably a programme might be sold by video which use would be "commercial" but it might legitimately be a programme where the use of copyright work in the programme came within the fair dealing provisions. In addition, this provision will lead to litigation over whether use by RTE would be "commercial" given RTE's position as a public service broadcaster which is partly funded by revenue streams such as advertising. The question as to whether the use of "commercial" or not is irrelevant. Rather the question as to whether the use of a work comes within the fair dealing provisions should be considered in the context of whether or not such use prejudices the rights or interests of the copyright owner.
That is the view of RTE in respect of this section. If I may I would also like, in respect of this section—
We must deal with the amendment before we deal with the section.
I apologise. I will wait until we come to deal with the section.
I strongly support Senator Henry's amendments. I believe that this provision was developed in a rarefied atmosphere. If one does any kind of academic research, a great deal of it is funded, either directly or indirectly, by the EU. One is obliged to include in one's research proposal the way in which it is proposed to disseminate the material.
The concept of private research is a contradiction. Research is concerned with the development of new knowledge. If that knowledge is developed privately, the only person to benefit from it will be the person who develops it. That is not what we are trying to achieve in this State. We are trying to develop research across all areas of activity. We are not trying to place people in little academic ivory towers where they will keep their findings to themselves.
I do not believe that the method by which the world's libraries provide copies of material for legitimate research is exclusively confined to the definition of research as "private" research contained in the Bill. If we are to have fair dealing – this deals with the perhaps 10,000 people throughout the world who are involved in doing regular research – then the word "private" makes the entire concept meaningless. Therefore, I support Senator Henry's amendments. I suspect the Senator was asked to table them by many of the people involved in academic research. This is an issue in respect of which the Minister cannot state that he must consult further. This is a fundamental issue which revolves around whether we recognise the understanding of the term "research" by its practitioners in Irish academia and elsewhere.
The practical effect of these amendments would be to remove the requirement that in order to qualify for exceptions to copyright, which are specifically designed to apply to private research or private study, the research or study in question should actually be private. I cannot accede to this proposal for two reasons. First, the removal of the requirement that the activities be private could occasion a most serious erosion of rightsholders' rights which would, in effect, give free copying of a very wide range of material. This could prove impossible to control and no one wants to see it happen because it would be contrary to our obligation under copyright law.
Second, the main beneficiaries of such a change would be, in all probability, commercial researchers rather than genuine students and researchers who would benefit from the exception as currently formulated. I can see no basis whatever for an argument that researchers in this category should not be liable to the payment of royalties if they wish to make use of intellectual property created by others.
While I appreciate the concern of Senators in respect of nurturing research, it must be borne in mind that our obligations under international law require that any copyright exception be limited, specific and incapable of interfering with the normal exploitation of a copyright work. I do not believe that the provisions in question would comply with this test if the amendment was adopted.
Senator Norris raised the difference between private and public research. These are not defined in the Bill which should allow sufficient leeway to deal with the bona fide academic situations such as those to which the Senator referred. However, the exception must remain private because it remains the case that large-scale copying, even for non-commercial purposes, could seriously undermine rightsholders' rights.
Have difficulties arisen in this area in the recent past? In the 1963 Act the term "private" appears only before the word "study", it does not appear before "research". I am appalled by the Minister of State's reply because it does not seem to be concerned about the trouble that this provision will cause for people involved in research. For anyone who has been involved in research, it is mind boggling to contemplate the difficulties that will arise. Will the Minister of State provide examples of where difficulties have arisen in respect of referring to research without putting the adjective "private" before it in order that we can assess that a serious problem exists? What is meant by the term "commercial research"? Everyone is obliged to find some form of financial support for their research and, on that basis, the Minister of State's assertion is unbelievable.
This provision must be workable on a day-to-day basis by librarians and I cannot see how they will manage to comply with it. We have entered the realm of the surreal. We are dealing with the practical provisions of the Bill and we are no longer concerned with people purchasing television sets and wondering the uses to which they will be put. We are discussing those involved in research copying material in libraries and I want the Minister of State to provide instances of where, since 1963, problems have arisen in respect of research which was not described as "private" in the last Copyright Bill.
Senator Henry has ably and passionately expanded on the point I was trying to make. However, the position is worse than she outlined because, as far as I am concerned, this is a further restriction of the concept of fair usage. Until now, fair usage was a reasonable defence in terms of commercial publishing. However, the concept is being narrowed to the point of extinction in this section. Any copyright lawyer the Minister of State wishes to consult will provide a view on what constitutes fair usage in terms of a dramatic presentation, a musical review or the publication of a book of criticism. I have had recourse to this so I know a little about it. I have sent material to a copyright lawyer to find out if it came within the limits of fair usage for the purposes of commercial reproduction. That seems to be gone because it is now limited only to private research. This is a catastrophic development.
Senator Henry has got to the nub of the issue. If I read this correctly against the 1963 Act, this legislation seems to be much more restrictive. Under the 1963 Act, making copies of a copyright work for research or private study is permitted within the statutory provisions of sections 12 and 14. In this instance, I support Senator Henry's amendments. There is no need for the word "private".
Senator Henry expressed the position clearly. The Minister of State referred once again to obligations under international law. Of what aspect of international law have we been in breach since 1963? It would help me a great deal on this matter if, since 1963, we did not have problems in this regard. The law is to be changed either because we are obliged to do so because somebody outside this State is telling us to do so and we have no choice or because the Minister has decided to change the law for a specific reason, which must be a problem. That is the question Senator Henry has raised. Why are we introducing the word "private" into legislation when it did not exist in it for the past 35 years?
In any of the research I have done on this subject, I tended to lean to a considerable extent on American copyright law because America is the home of litigation and it also has a highly developed, if not always factually correct, environment in which litigation operates, for good or ill. I can almost hear Senator Ryan's bile rising whenever I refer to the American imperialists taking over the world.
There was a famous case in America in which the international oil company Texaco was involved when it paid for research in the Univer sity of Texas. As a part of that research, journals circulating in the public domain, articles from journals and various other sources protected by copyright were used by the researchers in the University of Texas to provide a thesis for the commercial benefit of Texaco. If we remove the word "private" from this section, we will leave ourselves open to a scenario in this country where commercial organisations could pay researchers in university environments to carry out research for purely commercial purposes and they could use copyright protected sources under the guise of private research. I put that forward as one scenario. I am sure the Minister of State has many others. I am sure he will be able to comment on this far more eloquently and adequately.
One of the problems in copyright law has been that the 1963 Act was deeply inadequate and is not able to address the ever-changing situation here. A recommendation from an academic to academia in America, following the case of American Geophysical Unionv. Texaco Incorporated that took place in 1994, was:
We are in a period of tremendous change brought about by new technologies that are creating new and exciting possibilities for electronic creation, distribution and use of research materials. In fact, it is quite possible that a case about photocopying may prove to be unimportant within a relatively short period of time. Nevertheless, and regardless of its long-term effect or whether other courts follow it, Texaco, like all cases, has raised more questions than it has answered. Thus, Texaco does not clarify the scope of professional fair use in the university environment, but it may alert us to recognise that certain activities in the non-profit research community may, at some point in the future, be vulnerable to challenge.
I am devastated about this. I heard what the Minister of State said about all the dreadful goings-on in the past 40 years. One does not get postgraduate degrees here for commercial research such as that. I do not envisage that our universities or third level institutions would tolerate that sort of thesis being produced. If we contemplate the philosophy behind this provision, not to mind the wording, we must consider this a most retrograde step.
I am very aware of and respect the views of those who have contributed to this debate, especially those who have associations with universities. The thinking is very much along the lines expressed by Senator Mooney. I have been asked by a number of Senators to explain the rationale behind this and the context of the international obligations. The advice is that the intention of sections 49(1) and 49(2) is remove the exception in respect of commercial research contained in the 1963 Act, which refers to research in general and would, thus, embrace private and commercial research. It is our view that the exception in respect of commercial research fails to meet the test set out in Article 92.9.2 of the Berne Convention permitting exceptions. A move to an exception in respect of private research and private study alone, as proposed, would appear to be appropriate under the terms of Article 92 of the Berne Convention. Senator Quinn asked me to clarify that.
This move is supported by the thinking of the UK Whitford committee expressed in paragraph 677 of its report, where it recommends a move away from the commercial research exemption. The UK authorities did not follow this suggestion when implementing their 1988 copyright legislation, but it is clear from the comments made that we are anxious to support genuine private researchers. Senators might suggest we are being very principled about this. We want to support private copying for genuine private research. Taking account of the international position, this is our duty.
Senator Mooney's points are valid. If Senators are telling me this is not the case here, that is not to suggest it may not be the case in the future. We are introducing legislation that we hope will last for a considerable length of time.
I have been reluctant to intrude on this debate, but I believe the Minister of State's advice is wrong and Senator Henry is right. Research was available to Irish farming. Irish farming was transformed in the 1970s by international academic research and that research was available freely. I availed of it as a practising journalist. It was communicated to farmers and there was a technological revolution, which transformed the country.
I do not think anybody who has been to university can understand a scenario where technical knowledge and research are not shared, not just within the country but throughout the academic community. I am not convinced that it would not be correct for the Minister of State to accept Senator Henry's amendment. I would require more compelling evidence than that I have heard so far.
I thank Senator Dardis for his comments. What does the Minister of State mean by "private research"? All research nowadays must be backed by something. One must state at the end of articles and so on who backed them.
In support of Senator Henry's amendment, in a speech given to the Copyright Association of Ireland on Tuesday 15 June, Pauline Walley stated:
Making copies of a copyright literary, dramatic, musical or artistic work for the purpose of criticism or review is permitted if accompanied by a sufficient acknowledgment. Thus, substantial extracts may be copied, and even in some cases entire pieces, although it must be said that copying an entire piece will usually exceed the fair dealing defence. However, there have been cases where, for example, the copying of a whole poem has been justified under this heading. In Johnstone v. Bernard Jones Publications, the re-publication of a pools system or table for comparative purposes was held to be fair dealing as the comparison was genuinely made and not a deliberate attempt to copy the core part of the plaintiff's work. Criticism or review may be entirely hostile and even defamatory and still be deemed acceptable under this defence on the issue of copyright as in the Scientology case of Hubbard v. Vosper. This principle has also been applied in cases where news monitoring services “lift” pieces from other sources and supply them in a commercial manner to other users for commercial benefit. Sufficient acknowledgment includes not only identification of the title and source of the work, but also its author.
On the reporting of current events, she said:
This provides that the reproduction of parts or extracts of literary, dramatic or musical works for the purpose of reporting current events is permitted providing [they are] accompanied by a sufficient acknowledgment. Laddie suggest that a liberal interpretation should be given to this exception as it is in the public interest that it should be informed on matters of public concern. When extracts from the Annie Murphy book were published, this defence was successfully raised to resist interlocutory proceedings. It is arguable whether the extensive recopying of large extracts of the Terry Keane memoirs by newspapers such asThe Sunday Times, which had the copyright, would amount to fair dealing under this heading.
What is the relevance of Senator Coghlan's contribution to Senator Henry's amendment?
I am arguing that if research is genuine, it should be allowed. With respect to the Minister, he is being too restrictive. Ms Walley went on to say that under section 14(2) of the 1963 Act, no fair dealing of an artistic work which is broadcast or included in a film for the purpose of reporting current events is an infringement. This supports the principle of Senator Henry's amendment.
There is obviously a problem because the Minister has used two words, commercial and private, as if they were the only two possible forms of research. If that were so, the limited amount of research in which I have been involved would not have been possible because I collaborated with colleagues in Denmark, the Netherlands and Scotland on one project and with colleagues in Denmark, Italy, the Netherlands and Portugal on another. If we had been unable to exchange copies of documentation and material for use in research to be published, these projects could not have taken place.
This is the critical issue. The Minister, and I if I wanted to be really perverse, could probably argue that private research is commercial because it is done in private by commercial organisations which will never publish it. What should be included is research, the results of which will be made public. That is the type of research about which Senator Henry and I are talking, where the results will be published in an international journal. Private research, which the Minister is trying to use to defend against commercial research, is, in fact, commercial research.
"Private" is the wrong word to use. There is no point going backwards. If the Minister does not accept this amendment it will be made by the time the Bill gets through a select committee. The use of the word "private" will not survive academic scrutiny because it is the wrong word inserted by a lawyer in the parliamentary draftsman's office who does not understand what he or she is talking about.
I concur. If it is for a totally hermetically sealed ivory tower, that research is of absolutely no use whatsoever. The Minister did not answer my question about the definition of "private". I gave as an example the creation of a thesis in a university environment. It is a very modest form of publication but it does constitute a publication. There are four copies of a thesis, one of which is specifically lodged with the university library so it can be consulted. Its availability is a condition of being awarded a post-graduate degree and one copy must be lodged with the university library. I do not believe that, even this very modest form of publication, is covered by this section because of the use of the word "private". I am tempted to say something slightly vulgar. I have been advised not to.
We are not defining "private". If we did so, we could have a strictly limited definition which would defeat all of the arguments made by Senator Norris. Leaving a loose interpretation improves the position from the Senator's point of view. Specific provision for exceptions is made in the Berne Convention. The inclusion of "private" passes the so-called three step test which is important as regards copyright legislation. First, it must be limited, second, it must be specific and third, it is not capable of interfering with the normal exploitation of works. We would not consider including these provisions if they were not required.
Senator Mooney spoke about what has happened in the United States. It is important we take note of that.
What about the lodging of a thesis in a university library? It is then no longer private. It constitutes a publication because it is available for consultation by other scholars.
These limited provisions must be included in this legislation under the Berne Convention. Senators must accept our bona fides. We are trying to keep the position flexible in the interest of the researcher. Senator Ryan spoke about commercial research, and some results may be published in those circumstances.
Not if it is commercial.
A great deal of commercial research may be published.
It has to be patented.
I must ensure the legislation passes the Berne Convention test and if we do not make it specific, it will not. If we include a loose reference to research and omit the word "private", the legislation does not pass the Berne Convention test. I predict this provision will stand the test of time, in the Dáil or at select committee.
As it is now 12 o'clock, will Senator Henry report progress?
Will the Minister of State give the date of the Berne Convention?
The date is 1971, as amended in 1979.
When is it proposed to sit again?
At 10.30 tomorrow morning.