Copyright and Related Rights Bill, 1999: Committee Stage (Resumed).
SECTION 49.
Debate resumed on amendment No. 18:
In page 45, subsection (1), line 9, to delete "private".
–(Senator Henry).
I thank Members for the opportunity to comment briefly on the question of private research. I have some suggestions which may prove helpful.
Senators commented on the question of private research in the context of the section and queried whether the inclusion of the word "private" might exclude copying in certain types of research which are in the ordinary sense private. I remain convinced that legitimate private copying in an academic context in covered by the term "private research" as used in the section. I do not believe the fact that a researcher's remuneration ultimately comes from the Exchequer or the fact that a thesis may subsequently be made available to the public or even published would of themselves make the research any less private. This would be reflected in the practical application of the law. I share Senators' concerns that genuine private research of a personal or academic nature would be included in the exception provided for by the section. This type of research is one of the wellsprings of intellectual property and the appropriateness of an exception to copyright governing copying, albeit a strictly limited one, is widely recognised in the world of copyright law.
I could not accept the removal of the word "private" as suggested by Senator Henry because this would clear the way for a widespread erosion of authors' and rights owners' rights through free copying by commercial bodies and other organisations conducting research which should be accountable for copying royalties on their copy. This is what is required under international copyright law. Incidentally, since the absence of the private condition in the corresponding section in the UK legislation has been mentioned, I must state that I believe the UK section to be defective on this point.
Sharing as I do Senators' legitimate perfectly legitimate concerns on this point, I am willing to guarantee that I will have my officials examine the matter in consultation with the Office of the Attorney General with the specific purpose of devising a definition of the term "private research" to be inserted in the Bill. This will ensure, as far as possible, that legitimate private research only is included in the scope of the exception to the exclusion of other categories of research. I acknowledge that Senator Ryan suggested this approach.
It may prove that a more flexible approach without a formal definition would be more advantageous to academic and personal researchers. It may also prove very difficult to devise an acceptable definition in the hard terms required by legislation. Nonetheless, the effort will be made and should an amendment of the Bill on this point prove possible, I will bring such an amendment forward at a later state of the Bill's passage. I cannot promise that this will occur on Report Stage in this House although we will do our best to make it so. Matters concerning private copying exceptions are serious, particularly in respect of the protection of rightsowners – whether these be of literary, artistic or musical works or of databases. Nonetheless, applying the expertise of my Department and that of the Office of the Attorney General, I am confident that we can succeed.
I invite any Senator who may wish to do so to write to me to indicate their view of the situations which any definition should cover. I would find it most helpful if they would do so. I cannot promise that I will agree with them on all points but I would still find such submissions helpful. I thank the Senators who contributed to the debate on this amendment for their informative and often spirited contributions. That is all I have to say on the matter at present.
Acting Chairman
Before he begins, I remind Senator Ryan that we are considering amendments Nos. 18, 19, 24 and 26 together.
Mr. Ryan
I thank the Minister of State for his reply which is a genuine effort to respond to Members' concerns. There are two bodies with which he should consult about this matter and one of which is the Irish Research Scientists' Association. This organisation represents people in the academic sphere who are involved in research.
Whether the terms "private" or "public" are used to describe research, I suggest that those terms refer to research the results of which must be placed in the public domain. In my opinion that is what the Minister of State believes "private" research means. I hold a different view but I will not revisit old arguments. The measure of distinction here is the eventual destination of the results of research. If, for example, a person in a private laboratory is being paid by Monsanto to carry out research into genetically modified organisms and Monsanto will be the only recipient of that research which it can used for its own commercial advantage, I agree with the Minister of State that Monsanto should pay in full for every item of intellectual property it borrows.
Senator Henry is involved in the medical profession and a great deal of the research carried out in that sphere is funded by pharmaceutical companies. In the majority of instances, medical ethics dictate that the results must be made public and this often happens at fora funded by pharmaceutical companies. However, they are made public and are usually published in legitimate journals. Therefore, the source of funding is not the critical point. In my view it does not matter who is responsible for funding research as long as the results are placed in the public domain. That is the nature of research.
I used to work with the clean technology centre at the Cork Institute of Technology. Some of the centre's work is commercial and, therefore, any use of copyright material in that commercial work should be paid for correctly. Some of its work is not commercial and is placed in the public domain and adds to the sum of human knowledge. However, that is not what the Minister of State is seeking to inhibit.
I ask the Minister of State to contact the Council for Science, Technology and Innovation which comes under the remit of his colleague, Minister of State, Deputy Treacy, and the Irish Research Scientists Association. I accept that everyone will not agree on all aspects of this issue. However, I believe that the Minister of State is not attempting to inhibit genuine research and he should listen to the representatives of the organisations to which I refer. Assuming that we will have until September to do so, I will write to the Minister of State as requested. However, I cannot promise to write to him by tomorrow if, as is the Leader's current intention, we move to Report Stage at that point.
I welcome the approach taken by the Minister of State. It just goes to show how useful it is to remove the intensity from debates by leaving long gaps between Stages in order that Members can reflect on matters.
I accept the good intent behind the Minister of State's comments. I cannot speak for Senator Henry who is not present but I believe this provision represents a restriction on the terms of existing legislation and we find it difficult to accept it. I am not sure what approach should be taken but, as already stated, I accept the Minister of State's good intentions. In the absence of further advice from Senator Henry, I believe we must proceed.
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
Mr. Ryan
I move amendment No. 19a:
In page 45, lines 14 to 22, to delete subsection (3).
I will not mention the word "private" even though it appears in the subsection we propose should be deleted. This amendment comes about because of arguments about fair dealing and the nature thereof.
A number of my colleagues become somewhat tetchy when they believe I am not showing sufficient respect for the rights of people to own their intellectual property. However, it must be remembered that those involved in academic research do not perceive the products of that research as their intellectual property. They see it as something which must be attributed to them and which must not be plagiarised but out of which they do not expect to make financial gain. That is genuinely the way most academic researchers and people working in State research laboratories perceive this issue, except where they are carrying out commercial research. Once their research is published, they believe it is the world's property. That is the way the research process works.
I am concerned, for good reason, that in terms of protecting the rights of intellectual property holders, subsection (3) is too strict. I refer particularly to paragraph (b) of that subsection which states that copying is not fair dealing where "in any other case, the person copying knows or has reason to believe that the copying will result in copies of substantially the same material being provided to more than one person at approximately the same time and for substantially the same purpose".
I recently completed two EU funded projects as a participant in a team effort, the total cost of which was approximately £500,000. These projects were so expensive because of their collaborative nature. One of the projects involved colleagues in Scotland, Denmark and the Netherlands. In each of the centres, at least three or four people were involved in research and they were obliged to be well versed with a considerable amount of information relating to the subject of that research. I will not mention it because I do not want to go off on that tangent. Each person working on that research project had to be familiar with a common base of knowledge and each person went through literature with which they were familiar and identified papers and publications that were bases for all of that. The restriction in this section means that we should have only one copy of a particular paper. I can think immediately of one such paper that was of considerable use to us. What am I supposed to say to my colleagues in Denmark, the Netherlands and Scotland in such a case? I do not mean to personalise this issue, but I know what happens in such cases. I am not supposed to make multiple copies of a reprint and colleagues are not supposed to seek copies of it because they know it is being supplied simultaneously to other people. That is not an abuse of copyright, it is simply a practical matter because of the way collaborative international research is done.
I appeal to the Minister of State to consider the reality of collaborative research, particularly for us in this country because we need collaborative research to train our researchers, including people like myself. To train our researchers in a host of areas we need collaborative research. We need international partners because that is the only way we can establish an international expertise and international credibility. In the case of commercial research, this is a separate issue, but it is excessively restrictive to say that only one copy can be made in the case of EU funded research where everything that is discovered in the research is required to be published afterwards.
I do not propose to press this amendment. Section 49(3)(a) states "in the case of a librarian or archivist, he or she does anything which is not permitted under section 62". I do not want to make an issue out of that. I want to hear the Minister's reponse on the issue of multiple copies. I am interested in subsection (3)(b).
I support the points made by Senator Ryan on this amendment. I wish to quote further from a paper delivered to the Copyright Association of Ireland on Tuesday, 15 June, last. It relates to offences under the Copyright Bill and this fits in with this amendment and section. The paper states that the first point which should be made is that, although the Bill will supersede the 1963 Act and its satellite legislation, many of the key concepts on case law remain. The paper states that fair dealing is still a central concept to defences, though the Bill now provides that defence is available to all categories of work. The paper also states that the old Part II and Part III distinctions are virtually abolished and the Bill is concerned with works. The paper further states that performers rights are greatly enhanced and include rights for recorded and live performances as well as rental and lending rates.
On fair dealing defence, the paper states that fair dealing is defined in section 49(4) as the making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast or cable programme, non-electronic database or typographical arrangement of a published edition, which has been lawfully made available to the public for a person and to an extent justified by the non-commercial purpose to be achieved. The paper also states that some of the exceptions are familiar while others have been updated.
On private research or private study, the paper states that chapter 6, section 39, provides dealing with a literary, dramatic, musical or artistic work, sound recording, film, broadcast or cable programme or non-electronic database for the purpose of private research or private study is not an infringement. The paper also states that note that the old provision is amended slightly by the insertion of the word "private" before "research" and old Part III works are included in defence. The paper further states that librarians and archivists must be particularly careful when making copies of works available to students and/or library users to adhere to the strict criteria in sections 61 and 62 to invite infringements.
On criticism or review, the paper states that where a work is reproduced for the purpose of criticism or review, it is not an infringement of the work if accompanied by sufficient acknowledge. The paper states that this will be available for films, which was not the case under the 1963 Act. The paper also states that in Time Warner v. Channel 4, the substantial reproduction of parts of Kubrick's “Clockwork Orange” in a TV documentary was permitted, even though it was highly critical and possibly gave a distorted view of the film.
On reporting of current events, the paper states that fair dealing of a work other than a photograph for the purpose of reporting current events will not infringe, if accompanied by sufficient acknowledgement, but this is not required when reporting current events by means of a sound recording, film, broadcast or cable programme.
I support the points made by Senator Ryan on this amendment. I am concerned about this restriction being brought in as against the 1963 Act.
I thank Senator Ryan for his constructive reponse to our opening proposal.
Mr. Ryan
I am always constructive.
I appreciate that. We have got off to a good start but we have a long way to go. This amendment would present problems similar to those presented by amendments Nos. 18, 20, 24, and 26. The Senator has pre-empted what I am about to say. The intention of this amendment appears to be quite a substantial extension of an exception for private copying, which was designed specifically for private research and private study and such an extension would go well beyond what would be prudent by reference to the protection of copyright holder's rights permissible under international law. The point the Senator has made is that he wants a provision somewhere between the two extremes, but in law we are dealing with one copy or unlimited copies. There is no half-way house. I cannot not agree to accept this amendment.
Mr. Ryan
I am neither surprised nor disappointed that the Minister for State did not accept my amendment, but I am disappointed at the brevity of his response. Will he clarify what he thinks the section means for research that involves more than one person, multiple researchers, particularly those operating in more than one centre? How can they manage to give themselves a common base of access to published papers on an area of research or must they pay the copyright holder because there is more than one person involved? That is the only question to which I want an answer. If the Minister of State were give me a "yes" or "no" answer to that, we could pursue the matter further.
I have also participated in an EU inter-country project. If there is no infringement of copyright in regard to the material one were to photocopy to give to other members of a group, there is no difficulty. This section applies only to the copying of material in respect of which there is an infringement of copyright. If one were working on a project and using published information as part of a research project and one acknowledged the work of the people involved, that would not involve an infringement of copyright. This section only applies where there is an infringement of copyright. If a group is working on a genuine project between two countries, which involves four or five partners throughout the world, and one photocopies a document ten times for those partners, that would not involve an infringement of copyright once the work is acknowledged. If the copyright in a work is infringed, the person who authored the article or the work is entitled to have his or her rights protected.
Amendment No. 19a involves the deletion of subsection (3). I thought it also involved the deletion of the next paragraph. The only point I was going to make was that I thought that would be a mistake as it makes some attempt at a definition of "fair dealing" but I did not read the amendment correctly.
On the specific point Senator Ryan put to me, my understanding is that if one person receives a copy, that is in order and if five people were working on a particular project, that is also in order. However, if one of those five makes further copies, this secondary copying is infringement. Once again, this relates to the Berne convention on which one could speak at length. If I accept the Senator's amendment, a multiple copying exception arises, which is a breach of the three step test of the Berne convention.
Mr. Ryan
In other words, if I make copies of a document I legitimately obtained for my research partners, it is all right. However, if they make copies for those working with them on the same project, it is not.
If it applies to one research project, it is all right.
Mr. Ryan
That is the nub of it. I am not trying to be obdurate.
We are concerned about uncontrolled secondary copying.
Mr. Ryan
I agree with the Minister of State that we must not allow uncontrolled secondary copying. However, there is a difficulty with the conflict between research ethics and copyright. To a degree, copyright is inhibiting matters regarded as ethical from a research point of view. People regularly seek copies of other people's work. As Senator Cox said, the ethical and legal requirement is proper attribution. Any attempt to present other people's work as one's own is profoundly unethical and illegal. It probably qualifies as theft and should be treated as such. I know what the Minister of State is saying, but I am not happy. I do not want Senator Mooney rushing back to the House, but some of these copyright enforcement agencies are far from subtle and sophisticated in their way of dealing with matters. The operation of this provision must be looked at carefully. I ask the Minister to satisfy himself between now and the other Stages, by checking with the Attorney General or the parliamentary draftsman, that what he intends to do is allowed.
Amendment, by leave, withdrawn.
Amendment No. 20 not moved.
Section 49 agreed to.
SECTION 50.
Mr. Ryan
I move amendment No. 20a:
In page 45, between lines 38 and 39, to insert the following new subsection:
"(2) Fair dealing with a work for the purposes of parody shall not infringe copyright in that work.".
I have Senator Quinn's permission to move this amendment on his behalf. This is an interesting amendment. Parody is a valid and legitimate form of artistic work. There is an extraordinarily funny parody, which I commend to Senators, of a song which has been murdered at every wedding, funeral and other Irish gathering for the past 20 years, The Green Fields of France, each verse of which concludes “Willie McBride, why the f*** did you die?”, the theme being that because Willie McBride died the song has killed half the nation's musical sensibilities. It is a wonderful parody.
Parody is an important form of creative work. I am not speaking for Senator Quinn in this regard but saying what I understand is the purpose of the amendment. The use of copyright could inhibit what is a legitimate form of artistic work. I leave it to Senator Quinn to elaborate.
I thank Senator Ryan for moving my amendment and I apologise for arriving late. This amendment protects the right to parody the work of the creator of copyright works. I hope it is obvious why such a protection is needed in the public interest. It is not covered anywhere else in the Bill, although I may be wrong. The amendment aims to redress that. Parody plays a useful role but if we are not careful it could be restricted. For generations it has been useful in political criticism, on the stage and in written works. More recently, embarrassment has been caused at political or other levels to those who do not like to be parodied. Parody can be useful and we should protect it in the public interest. If it is used in a manner which infringes copyright, the freedom to parody may be restricted. I urge the Minister of State to consider this. The right to parody is almost like a right to free speech. He may say this is covered elsewhere and, if so, I will be glad to hear it. Otherwise, a case should be made in its favour.
I support this amendment, particularly if it can be demonstrated that parody would be inhibited under the Bill without amendment. Parody is one of the characteristic forms of Irish literary humour and we probably use it more than any other group of writers. Obviously, Joyce comes immediately to mind. Copyright would not be invoked so much in that case because the people he parodied are almost all dead. He does it extensively in The Oxen and the Sun episode which is nothing but a series of parodies of liter ary styles from early medieval alliterative poetry to American slang. The same applies to Flann O'Brien and Percy French, who were masters of parody. We should make provision to ensure parody is not excluded.
This is a legitimate concern. The question is whether parody, which is a legally imprecise term, can be an infringement of copyright. The test is whether the defendant's work reproduces the plaintiff's work or a substantial part of it. The fact that the defendant has attempted to parody the plaintiff's work is not of itself a relevant consideration. Thus, in the case of a literary or dramatic work, if the parody does not make substantial use of the language or incidents in the plaintiff's work, there will be no infringement. The substantial part test also applies in relation to parodies of musical and artistic work.
The question of parody is under discussion at EU level, as regards possible new copyright directives, particularly in relation to the WIPO treaties and copyright in the digital age. The question is whether we need exceptions for parodies. I cannot accept the amendment as I have no authority to do so in the absence of a clear position on the issue. It is being discussed at EU level and I will involve myself and my Department in the debate at that level. However, I cannot accept the amendment at this stage.
That is rather worrying. In order for a parody to be successful, it must incorporate a substantial amount of the original text, with subtle variations on that text. It is unlikely that a good parody would pass the legal test of the substantiality of the quote because it would use substantial elements of the style. If it were modelled on a poem, for example, it might be very close to the original but with a few clever twists which reversed its whole meaning. This is a very good example of how a vague concept, such as the notion of fair usage, can be quantified. The nub of the question is quantifying the amount of direct quotation that can be regarded as fair usage. This becomes critical in the case of parody in particular because, by and large, one would use a substantial proportion of the original material, with just some twists and turns.
Copyright holders might be anxious, for their own reasons, not to permit the publication of a parody because it might expose the weakness, immorality, stupidity, vanity or other human fallible qualities of the original author.
Mr. Ryan
None of which the Senator possesses.
As St. Brendan Ryan has just said I possess none of these moral failings, I expect to fly out the window at 6 p.m..
I will be with the Irish countrywomen at 2 a.m..
What is the Senator going to do with the Irish countrywomen at 2 a.m.?
Senator Quinn has isolated a very significant point here for the reasons I specified. It is an example of where these issues become more critical.
I am also concerned by the Minister of State's reply, but for slightly different reasons. He said we are waiting for the EU to make a decision. That is quite a change, because up to now we have been told he cannot do anything because the EU will not allow us, or words to that effect. He is now telling us that we waiting to see what the EU decides on this issue. That is wrong and exactly the opposite of how we should be leading the world. We should be the standard bearer of the right course of action in copyright law. Others can criticise us if they do not like it.
This is a minor aspect of the Bill. Senator Norris is right that a parody must incorporate whole sections of the original if it is to work. A parody need not necessarily be a criticism of the original work but could, for example, use it to joke or be humorous about senior politicians. They could use this Bill to stop such parodies and criticisms of them.
This is an example of why we are getting nowhere with this Bill. We have had a great deal of input into the Bill. We have accepted the vast majority of the Minister of State's answers when he says a point is very good but that he is not allowed accept it. He has said the opposite in this case – that he cannot accept it because the EU may decide to do something else and we in Ireland would not like to upset it by leading the way.
The Minister of State should reconsider this. I not happy to be told, once again, that he will give some thought to it in the future and that it might be addressed in the Lower House. If this Bill is coming through the Seanad, it should be discussed here. If changes are to be made to it, they should be made in the Seanad rather than rushing it through here in a few hours so that the other House can consider it in the next session. That is not good enough. It seems the Minister of State is making excuses for why he cannot take any amendments whatsoever. I am concerned by this because we should be leading the world in this regard.
This amendment concerns a minor aspect of the Bill. It does not seem worth calling a vote on it because it is not the most important matter in the world. However, it is another example of how the Bill is not getting the consideration it should. Perhaps we should call a vote, if only to draw attention to the Minister of State's lack of consideration of it. None of the 40 or so amendments we have discussed so far was accepted. The Minister has told us, in response to every amendment, that he will wait and listen and then consider them in the other House.
As I said before, I am not going to accept amendments for the sake of it. If a Member proposes an amendment that adds something new to the Bill, I will accept it. I am not responsible—
Mr. Ryan
This case is slightly different to the Senator's interpretation. The reality is that the EU solutions may be helpful in this area. The Senator has missed my point. To turn the argument around, does the Senator think that someone engaging in an unauthorised adaptation of someone else's work should escape liability for infringement by calling it a parody?
I have opposed various amendments on solid grounds. I have responsibilities also. I have made good, solid arguments on every Stage over which I will stand. As soon as I see an amendment which adds to the Bill, I will accept it. I am not denigrating the Senators' amendments – they have obviously received assistance in their drafting and I welcome the fact that someone has gone to that trouble. However, that is a separate issue. Senators referred to other legislation where my colleagues accepted amendments, on which I congratulate them. However, I am not going to apologise for rejecting amendments which I feel will not add to the Bill. If Senators wish to call a vote, so be it because I am not accepting the amendment.
I fully support the amendment for all the excellent reasons outlined by Senators Quinn and Norris. In fairness to the Minister of State, he sees some merit in it but has a difficulty in that matters must be referred back. Parody has always been an essential part of Irish comedy and humour. It would be a great tragedy if any rowing back from that was provided for in this Bill, as seems to be the case.
I plead with the Minister of State to make this exception. I appreciate his difficulty that he is bound, as he sees it, by a European convention. We appreciate that he is taking advice and that he will return to us. However, through no fault of his, we will not have that advice by next week. That is making this an empty and wasteful exercise, although it is not of his making. Tempers and nerves are frayed, as was seen on the Order of Business today.
The Bill will not go to the Lower House this session. I ask the Minister of State to consider obtaining all the advice and returning to the House at the beginning of the autumn session. I am sure the Bill would then be passed in a few days because we would have all the explanations the Minister of State has promised. We could then do our business in a worthwhile fashion.
It has been a helpful debate but I have been clear on this.
I accept that and I am not going to quibble with the Minister of State but this is becoming empty and wasteful for the House.
Mr. Ryan
I have in my hand the Electricity Regulation Bill, 1998, a Bill which transforms the manner in which electricity will be generated.
Mr. Ryan
There are 50 sections in the Bill. The Minister for Public Enterprise told this House that she accepted 25 Opposition amendments to the Bill and, in addition, produced a further 20 amendments on Report Stage arising from suggestions made on Committee Stage. That makes a total of 45 amendments to a Bill of 50 sections. So far not one Opposition amendment to the Copyright and Related Rights Bill has been given serious consideration. The Minister of State does not intend to be offensive but has been so by saying that he will accept an amendment which will add to the Bill.
The Senator will find that I accepted an amendment on private research. He should acknowledge that.
Mr. Ryan
We accepted the bona fides of the Minister of State. He did not accept the amendment.
Mr. Ryan
The amendment was not accepted. He is now onto the first possible amendment to be introduced on Report Stage.
I hope there will be more.
Mr. Ryan
His colleague, the Minister for Public Enterprise, managed to produce 20 such amendments to an equally challenging Bill in which she had considerable pressure put on her from lobbyists and trade unionists.
I share Senator Quinn's frustration. In future legislation the sections of a Bill which are a consequence of EU directives should be marked with an asterisk so we can ignore them because there seems to be no debate on them.
I am astonished that the Government should not have a view on something being discussed at EU level – the issue of parody. Decisions about EU directives are made by the Council on which Ireland is represented. There have, however, been occasions when empty chairs have messed us up, as they did with duty free. The Minister of State implies that a decision on this is imminent within the EU but the Government does not have a view and is waiting for the EU to tell us what our view should be. That is not the way the EU works. Either he thinks this amendment is good, in which case he should go to Brussels and fight for this approach, or he thinks it is bad, in which case he should reject it. To reject the amendment because we do not know what the EU will say is to abjectly surrender what is left of our sovereignty to the EU where no such necessity exists.
What will happen to this Bill? The Minister of State forgets that the more he procrastinates, the more difficult his job will be in the other House. He will end up coming back here from the Dáil with 50 or 100 amendments made there and he will expect us to agree to all of those in the course of a half hour debate. That is the final insult to this House – when issues raised here must be disposed of in the other House by way of amendment and are brought back here and we are supposed to agree supplicantly to because the Dáil decided on them, even though we were the ones who initiated the ideas. I find that offensive.
The Minister of State is in danger of turning us all into Eurosceptics, even those of us who are pro-European. We are being threatened with a paralysis because of a hypothetical European ruling. This bullying attitude is evident and I am beginning to understand a little better what the Tory Eurosceptics in Britain were talking about. This morning on the Order of Business we were told that this House had been directed to finish this Bill. Parliaments are not amenable to being directed by external sources.
I have allowed latitude to Senators on the general points they wish to make but I ask Senators to address the amendment.
I raised the point because waving the European dimension can be counter productive. The point was well made by Senators Ryan and Quinn. By passing this in the absence of a clear European directive, we may be contributing to the creation of a European policy. That is not a reason for not accepting the amendment.
The Minister gave an example in his reply that someone might adapt an original work and claim that it was a parody. Maybe it would be – in most circumstances it would. Without this amendment such adaptive parody might not be legitimate. If it was not a legitimate use of the work, this would go to law when it would very quickly emerge whether it was a parody. A judge would have no difficulty if a work had been mischievously taken over, had an odd word charged with no satirical import or impact on the text and claimed as a parody so that it could be pirated. No judge would be stupid enough to miss that. This would be sorted out at that point.
I mentioned literary parody in terms of the novel. There are also satirical reviews such as those which Fergus Lenihan used to stage in the Gate Theatre, often a series of parodies. Would they be covered? They would be covered by Senator Quinn's amendment.
The example the Minister of State gave is not sufficiently strong for this side to withdraw the amendment. Withdrawal is a decision for Senator Quinn. For my part, having been told that I was throwing snowballs made by other people, that none had hit the target and that they were made out of soft slush, I would call a vote. It would the price for them if votes were called on every single amendment this afternoon for keeping us up until midnight last night and possibly to 2 a.m. tomorrow morning, although I shall be disporting myself by then with some genial country women.
I have a difficulty with this because we worked with the Bill all day yesterday, called no quora or votes and sat until midnight. I have a sense that in this case satire and parody are not included in fair dealing. The Bill mentions fair dealing in section 50 subsection (1) and (2) which read:
(1) Fair dealing with a work for the purposes of criticism or review of that or another work or of a performance shall not infringe any copyright . . .
(2) Subject to subsection (3), fair dealing with a work . . . for the purpose of reporting current events shall not infringe copyright . . .
It would be very little extra to include parody or satire. The Minister of State has said no. He has refused amendments because he has not been freed to agree under the European rules. In this case he says that is not the problem; rules may be made later and we should not do anything before that. If we are going to make a stand it may as well be on this issue, if only for freedom of speech. We should be allowed the right to parody something without being told that we may not do so because it would be infringing copyright. This is an area where we should be allowed to do so.
Mr. Ryan
I am horrified at the idea that po-faced self important European bureaucrats should be the final arbiters of parody. The natural instinct of the type of people who dominate Brussels bureaucracy would be to make it impossible, if for no other reason than the extraordinary sense of their own self importance which such people have demonstrated over the past 25 years.
Senator Quinn is right; it does not include satire or parody. The problem is that parody is a legally imprecise term. I come back to the value of this debate, which is the fundamental one. It is first debate on this Bill and is the first step which we must take. I value it and would like to continue with this for as long as is necessary.
We talked about EU developments and Senator Ryan spoke about another Bill where certain amendments were accommodated. Apart from our legislation and developments since 1963, my colleague would not have had to accommodate about a half dozen EU directives and the famous Berne Convention. I mentioned the question of the unauthorised adaptation of somebody else's work and my concern about widespread abuse. I am in this, as in others issues, because of the legal imprecision, etc., tied by the Berne convention, the three step test about which I talked and the TRIPs Agreement. There are constraints. We raised many important issues but, as I said in my opening remarks, my Department and I will concern ourselves with this issue at EU level. I cannot accept the amendment and have tried to explain the reason as best I can.
The question is the definition of parody. It may not have legal definition at the moment but it clearly has a literary definition and one can lift it out of any of a number of text books which would all be fairly clear on what parody is. Perhaps the Minister could include one of these definitions of parody. The reason it may be regarded as an imprecise legal term is that it has not been defined legally. Define it legally by including a definition from a standard text book of literature and that then becomes a legal definition which would obviate that little difficulty.
I am trying to be helpful. I mentioned in relation to private and commercial research that if Senators have suggestions on the question of definition, I would be more than happy to hear from them. In saying that, I make it clear that it may not be in time for Report Stage. All those engaged in this debate, like myself, want the final Bill to be comprehensive and to cover all these issues which have been raised for the first time. If Members have suggestions on definitions of "parody", I would be more than happy to hear them; they may convey them to me or to my Department. My position on this matter is as I stated.
Amendment put.
Tá
|
Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Coogan, Fintan.Costello, Joe.
|
Cregan, Denis (Dino).Doyle, Avril.Doyle, Joe.Gallagher, Pat.Manning, Maurice.
McDonagh, Jarlath.
|
Tá–continued
|
Norris, David.O'Dowd, Fergus.Quinn, Feargal.Ridge, Thérèse.
|
Ross, Shane.Ryan, Brendan.Taylor-Quinn, Madeleine.
|
Níl
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.
|
Gibbons, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Walsh, Jim.
|
Tellers: Tá, Senators Quinn and Ryan; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost
Amendments Nos. 20b, 20c and 20d are related and will be discussed together by agreement.
I move amendment No. 20b:
In page 45, subsection (2), line 39, to delete "Subject to subsection (3), fair" and substitute "Fair".
The first of these amendments is a technical one which is necessary if the second amendment is accepted. I propose, in the interests of consistency, to remove the requirement for acknowledgement. If it is not necessary for broadcast media, it is also not necessary for written media. One could say written media have more space to carry acknowledgements and perhaps that is the reason. However, that does not affect the principle and we should be worried about the principle. It is either necessary or it is not. If it is necessary, it should be carried by broadcast media, no matter how inconvenient that may be.
A precedent in the reverse direction is provided by the regulations on advertising financial products. Despite the inconvenience for advertisers in broadcast media, the small print caveats required for advertisements of financial products apply equally to all media. Senators may have heard radio advertisements, particularly regarding banking, which are obliged to carry certain words which I cannot remember now. We should follow the principle and not allow convenience to dictate whether something is required.
Amendment No. 20b proposes deleting "Subject to subsection (3)," and leaving the Bill stating:
Fair dealing with a work (other than a photograph) for the purpose of reporting current events shall not infringe copyright in that work, where the report is accompanied by a sufficient acknowledgement.
That would be consistent across all media. As we said when we talked on section 23(2), we should not make different rules for different media. If it is right for us to acknowledge something in one medium, we should do it in the others too.
There is convergence of different media. In the future it is likely the same lines will not be drawn between broadcasting, television, Internet, print and other media. The are all inter-locking, particularly with digital television and the Internet. It is wrong some media must carry acknowledgements and others need not.
I again presume the Minister will say this amendment is a good idea and he is happy to accept it.
I support amendment No. 20b because if the phrase "Subject to subsection (3)" is included there is a substantial unnecessary restriction on the capacity to reproduce material. Subsection (3) relates to librarians and archivists and refers to section 62 which is about restricting multiple copying. The whole point of getting material for a newspaper is that there will be multiple copying. Where is the logic? I do not understand it. Perhaps I am misinterpreting or misreading the material. If a clause which restricts multiple copying is operating, what is the point in allowing it to be used for newspaper reproduction, the very essence of which must be massive multiple copying? It seems daft. Perhaps there is an answer.
On amendment 20c which deals with sufficient acknowledgement, television or radio by its nature is evanescent and ephemeral. However print media does last, as does the lack of acknowledgement. That is an argument in favour of requiring an acknowledgement and I would have difficulty supporting the second amendment unless there is further explanation.
However I have no difficulty supporting the first because it seems the Bill is illogical and daft without it. How can a newspaper possibly publish material without being engaged in multiple copy ing? Reading this section together with the previous subsection to which it refers and section 62 which that subsection quotes, it seems impossible for a newspaper to reproduce.
I wholeheartedly agree with Senator Quinn on amendment No. 20c. I do not disagree with anything Senator Norris has said on amendment No. 20b. Senator Quinn made a fair point on amendment No. 20c in the interests of equity and natural justice. On other sections, most notably section 23, we spoke about having a level playing pitch, being even-handed and not having inconsistencies in the Bill. Surely all media should be treated equally. I cannot see the sense in requiring some media to provide an acknowledgement and not requiring others to do so. I fully support this entirely logical amendment. We should be consistent in our approach.
I was looking at the wrong subsection (3) of the Bill. The Minister need not bother replying to my point because I know I was reading the wrong subsection.
The reason behind the Senator's suggestion is to allow fair dealing with a work – other than a photograph – for the purpose of reporting current events without the necessity for a sufficient acknowledgement accompanying the report. The text of the exception as it currently stands already provides that in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme, no acknowledgement is necessary as it is considered that such a necessity would be impracticable. I do not see the need for this amendment, especially in the case of reporting current events by means of newspapers, as a sufficient acknowledgement would normally accompany such reports and is not seen as overly burdensome. It would be inconvenient when reporting current events on television and radio and we have already provided that acknowledgement is not necessary in subsection (3). In other cases, such as newspapers, there should not be a difficulty.
I do not understand the answer that it should not be inconvenient. Of course it is inconvenient. I am talking about principles. The Bill is saying print media must acknowledge but broadcast media on television or radio need not acknowledge because it is inconvenient. We should not be talking about inconvenience. My example, in the reverse direction, was the advertisements for financial services. An advertisement for banking services in print must carry the interest rates and other details. An similar advertisement on the radio or television for banking services must also state interest rates and other details. That is inconvenient. Advertisers would love if they did not have to do it.
It would be a problem for someone to acknowledge four quotations in the middle of a current events programme which is quick and speedy. This is the nuts and bolts of it. Current events programmes are different from newspapers where it is relatively easy to acknowledge.
Of course it is inconvenient, I understand that.
The principle should be the same. There should not be one law for one medium and a different law for another. Media are now converging. I received advice on this because I want this Bill to last. I hope the Minister wants this Bill to last for at least a generation. As we said last night, none of us wants to see it come back too soon, least of all the Minister. We cannot have anomalies in it whereby provisions apply to some media and not to others because it is inconvenient. The principle should apply. We should insist on it even if it inconvenient, or else remove it from other media. There is a convergence of the different media. Since it will be difficult to enforce, it is bad law. The principle is at stake.
There are difficulties relating to the speed of television sound recordings and newspapers. I ask the Senator to resubmit the amendment on Report Stage and I will reconsider it. I want to get it right legally. There is a need for this section in terms of acknowledgment because of the speed and movement of current events and the difficulties related to television sound recordings.
Mr. Ryan
Everyone seems to be quoting their literary outputs. Having had one book published in my life, I am intrigued to know how a copyright work could be mentioned in connection with the reporting of current events by means of a sound recording without it being deliberately and knowingly used by someone. The difficulty will be that if they do not have to attribute the source, some of them will give an impression of authority, knowledge and expertise which the print journalist must disabuse his readers of by acknowledging that a significant portion of it was taken from a book by Senator Quinn or Senator Norris, whereas their counterpart in the other media can give a clear impression under fair dealing provisions that it was their own work since they do not have to acknowledge from where it came. That is a recipe for giving people in the broadcast media a capacity to create an impression of expertise and authority which is unfair. It is not inconvenient to acknowledge the use of other people's work.
Let us not confuse this with the next section, which deals with incidental confusion. We are talking about the deliberate inclusion in a current events programme of something which the person making the programme knows to have come from another source. If our number one news reporter, in his breathless way outside Leinster House, chooses to quote from Brian Farrell's book on Seán Lemass entitled, Chairman or Chief, because something comes up about Seán Lemass, I see no reason he should not have to acknowledge that the piece he is quoting came from somebody else. It is wrong that it should be otherwise.
While I appreciate the arguments being made, it may be difficult to do this if a person is preparing a 30 second shot for a report on a news programme. The principle that if the onus is not put on people to acknowledge someone's work their copyright could be infringed is correct. There should be no exemption in that case. The Minister said he will examine this and come back on Report Stage. I suggest that the Senator withdraws the amendment and resubmits it on Report Stage when I will support the principle.
I thank the Minister for his reply which suggests he will give this matter serious consideration. One should not differentiate between the two. If we do not insist that work must be acknowledged on radio and television, we cannot insist on it being acknowledged in the newspapers. We should not have one law for one medium and a different law for another. I am happy to withdraw the amendment and to resubmit it on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 20c and 20d not moved.
Question proposed: "That section 50 stand part of the Bill."
Mr. Ryan
Where does the Internet fit into this? It is possible to receive television broadcasts and The Irish Times via the Internet. I am concerned about fair dealing in terms of the Internet. Most live videos on the Internet are produced by existing broadcasters, but it is only a matter of time before live videos will be broadcast exclusively on the Internet, as is the case with live radio. This is not covered by either the definition of “broadcast” in this Bill or the definition of a “cable” programme. The cable programme definition specifically excludes the Internet and the broadcast definition specifically excludes the nature of the Internet as it states “a transmission by wireless means”. We know that parts of the Internet, but not all of it, are transmitted by wireless means.
My advice is that if this process of criticism or review conveyed through the medium of the Internet and cable programmes can be used in that fashion, this will apply.
Question put and agreed to.
SECTION 51.
I move amendment No. 20e:
In page 46, subsection (1), line 11, after "work" to insert ", where such use does not prejudice the interests of the owner of the copyright".
This interesting section is too sweeping. It needs the qualification in my amendment to maintain the balance of fairness. It deals with incidental inclusion of copyright material. When I read subsection (1) which states that the "copyright in a work is not infringed by its inclusion in an incidental manner in another work" I thought it was perfect. However, I soon realised it needed something extra. In the interest of fairness, it would be useful to include this amendment.
I support this amendment which makes sense. Why should we prejudice anyone's rights when the Minister is going to great lengths in other areas of the Bill to protect them? Senator Quinn's comments are correct. The inclusion of this amendment will not damage the Bill but improve it.
This is an interesting section. Section 51 allows for incidental inclusion of copyright materials in other works without infringement of copyright as, for example, where a film in being made in Grafton Street and the music being played in a record shop can be heard in the background. For reasons of equity the incidental inclusion of this music in the film should not give rise to an infringement of copyright in the music nor to any requirement on the filmmaker to pay royalties to the copyright owner in that music for the use of the music in the film. However, the provision in subsection (3) ensures that the music is only properly regarded as incidental to the making of that film if there is no deliberate act on the part of the filmmaker to include that music in his or her film. This is sufficient to prevent avoidance of payment of copyright royalties or copyright infringement by inappropriate use of this exception. In my view the amendment may go too far and may totally undermine this exception which is to cover purely innocent incidental inclusion. This could be taken to the extreme in that a film maker may have to seek the permission of architects of buildings if he or she was filming in the city. I hope that background information explains where we are coming from.
I accept the Minister's view. I was trying to strengthen the subsection without making it too strong. I get the impression that Senator Ryan is not terribly enthusiastic about supporting my amendment, so he accepts the Minister's case.
Amendment, by leave, withdrawn.
Question proposed: "That section 51 stand part of the Bill."
Mr. Ryan
There are two reasons I cannot support Senator Quinn's amendment, first because I do not agree with making the section more restrictive and second, because I think it is too restrictive as it stands. Subsection (3) states:
A work shall not be regarded as included in an incidental manner in another work where it is deliberately included.
This needs more thought. I do not want an artist's music to be ripped off by a film maker; on the other hand, we have quite deliberate prohibitions on the copying of artistic works and we have specifically included, for instance, two dimensional copies of three dimensional works. If somebody is making a film on the streets of Dublin and decides to shoot a scene at the bottom of Grafton Street, near the statue of Molly Malone, do they have to get permission from the sculptor of the statue? We have wonderful pieces of public art, and on the new road between Cork and Killarney there is one of the most magnificent public art displays you will see in Europe. If a film maker deliberately uses this innovative Irish idea of public art when filming in the area, are we saying they have to get permission from each of the copyright owners of each of those works of art before they can make a film? The idea that prior permission would be required in each case seems to be carrying it too far, particularly when the art is on display in public places. The artist should be grateful for the publicity and an acknowledgment in the footing.
Senator Ryan is complicating the issue. The section is clear-cut and deals with incidental inclusion of copyright material. I have made my position clear and Senator Quinn has accepted my point with regard to music in Grafton Street.
Let us now consider the case of the Molly Malone sculpture being included in a film. My contention is that if the sculpture was the subject of the film and constituted a major part of it, that would be different and is not covered by this section. In that case, permission should be sought from the sculptor and royalties should be paid, but obviously if a film crew were shooting a group and the Molly Malone sculpture was incidental, that is different. A court could obviously decide which situation was incidental by simply looking at the film. It would not be very difficult for a court to decide where copyright was being breached.
We dealt with this point on Second Stage. To return to Senator Ryan's point about the display of public art on the new road from Cork to Killarney, if the film is based on those sculptures, then they are not incidental but the subject of the film and the owners of the sculp tures are entitled to be protected by copyright. If by virtue of the fact that they are filming the Cork-Killarney rally and as part of that the sculptures are shot and used in the promotional video, the sculpture is incidental to the film and there is no infringement of copyright.
As we are on the Cork-Killarney Road, I could not let the opportunity pass without giving another example. On Sunday when we beat the living daylights out of Cork in the Munster final, there will be a band playing on the field before the match and when we are being presented with the cup, does it mean the band will be paid by RTE?
No, the band may have to pay the copyright owners of the music they are playing.
Mr. Ryan
I am well aware of what the section means, but I have to deal with what is written in the Bill not what the Minister thinks it means. The subsection states:
A work shall not be regarded as included in an incidental manner in another work where it is deliberately included.
That does not mean it has to be the topic of the work or the central issue, it simply has to be deliberately included. That means that if a photographer from The Irish Times wants to take a photograph, perhaps a publicity stunt for the Dublin Theatre Festival or a music festival in Dublin, and decides to use the very attractive setting with that sculpture, that is not making the sculpture the central issue of the photograph but it is most definitely deliberately included. I am talking about works of art in public places and I believe this presents a difficulty. I repeat I am not a great fan of the bodies that get the right to look for copyright fees because they are capable, in my view, of taking a rapacious interpretation and not the Minister's sensible interpretation. We could end up in all sorts of complicated litigation unless we make some change to deal with works of art in public places.
All I can say is that I hope common sense will prevail. It is logical that if a photographer is to take a photograph he might line up the subjects beside a monument or work of art. Someone might want to photograph students standing beside a work of art or monument. They now have to ask themselves whether the owner of that work of art would sue the photographer. I hope that common sense will prevail among all the players, whether they are copyright owners, users, film makers, photographers or whatever, in the interaction here. Members have given me good examples of incidental use of materials and works of art and the deliberate use of same. I could give thousands of examples of what does and does not fit in with this section. I thank Senator Quinn for accepting my explanation.
Mr. Ryan
Let me give a specific example of why I am concerned about imprecision in this section. A friend of mine owns a pub in Cork and he used to provide live traditional music two nights a week. IMRO or one of its predecessors demanded £2,000 from him in the form of a licensing fee for simply providing traditional music sessions. They never listened to the type of music that he played. I do not wish to provoke Senator Mooney into descending from his office to attack me but I hold a certain view of traditional music. I do not believe its copyright problem has been resolved by the deal between the Comhaltas Ceoltóirí Éireann and IMRO. While Comhaltas Ceoltóirí Éireann has done wonderful work to preserve traditional music it still does not own it. The deal may solve Comhaltas's problems in situations where it is in charge but a good deal of traditional music is not played under the auspices of Comhaltas Ceoltóirí Éireann.
IMRO wanted £2,000 from my friend because he had traditional music sessions in his pub. That is why I worry about imprecision in the language used in this section. The licensing agencies and the copyright protection agencies take a different view of the world from that which the Minister seems to believe. I do not want artists losing their legitimate royalties but it is not the intention that every time a modern piece of sculpture on public display is deliberately included in a photograph that people have to seek copyright permission in advance before printing it or automatically pay a royalty to a licensing agency. If that were the case it would be an enormous imposition.
If we move towards collection agencies it is those agencies that could exploit the situation. It would be up to the person who made the video or the person who took the photograph to prove that they did not deliberately include a work of art. We discussed this issue on Second Stage but I want officials to take account of it. Collection agencies often conduct their work in an intimidating manner. Sometimes people find it easier to pay the money rather than have an argument.
It leaves much to be desired.
Yes. I look forward to debating this issue at a later stage. One of the points made by Senator Ryan is probably valid. I do not know if changing section 51(3) will address this issue. We should examine collection agencies to see how they conduct their business. If I made a video that included a shot of the Molly Malone statue it would be obvious to me that it was not done deliberately. I should not have to go to court to prove that the shot was not deliberate. I ask the Minister and his officials to take account of that fact when we examine the collection agencies at a later stage.
Senator Cox said what I was thinking. Senator Ryan made a valid point but he has not tabled an amendment. This issue seems to be worthy of an amendment. Perhaps the Government will table an amendment on Report Stage.
Senator Ryan correctly pointed out that the word "deliberate" is too vague and open. As Senator Cox and the Minister have said, it could be said that someone who took a photograph in front of a statue or painting did so on purpose because they wanted a souvenir. Is that scenario in danger of being covered by this amendment? We should re-examine this amendment and strengthen it. Perhaps the Government or the Opposition side could insert an amendment on Report Stage. I am not happy with this amendment because the word "deliberate" is too vague and leaves it open to the concerns Senator Ryan talked about.
We have already had a good debate on collection agencies with regard to traditional music being played in pubs. I look forward to dealing with this issue between now and the end of Committee Stage. I acknowledge that there are legitimate concerns and that agreements have been made with Comhaltas Ceoltóirí Éireann, etc.
With regard to the point made by Senator Ryan, the playing of traditional music would be deliberate, as distinct from incidental, because it would be part of a pub's activities.
Mr. Ryan
I only gave an example of the way agencies behave. I did not suggest that it had anything to do with this section.
We have dealt with this amendment. Points have been raised on this issue. If there is something that needs to be fine tuned then I will examine it. However, I would be more than happy to discuss agencies and their activities at a later stage.
Question put and agreed to.
SECTION 52.
An Leas-Chathaoirleach
Amendments Nos. 20f, a21a and 21e are related and may be discussed together.
I move amendment No. 20f:
In page 46, subsection (1), line 26, after "instruction" where it secondly occurs, to insert ", including instruction by means of distance education".
Section 52(1) read as follows: ". . . by its being copied in the course of instruction or preparation for instruction. . . .". I suggest we include the words "including instruction by means of distance education". My amendment is necessary because it is easy to overlook the requirements of distance education or learning. Distance education has changed dramatically in recent years and the Internet has increased its value. It is interesting that the Americans, who are forcing the pace on these matters, now acknowledge that their recent copyright legislation overlooked the requirements of distance education and have been forced back to the drawing board to correct this mistake. I am sure the Minister of State and his officials are aware of the American situation, yet I find no acknowledgement in the Bill of the existence of distance education and how its needs impact on copyright legislation and protection. I would welcome the Minister of State's response to this point.
Amendment No. a21a proposes the addition of "including instruction for the purpose of distance education". This is another section in which we need to specifically mention the needs of distance education. Amendment No. 21aa proposes the deletion of paragraph (b). If we are to frame this legislation to accommodate the needs of distance education it may be necessary to delete line 39 on page 46 which states "the copying results in only a single copy being made, and". I do not see how one can carry out distance learning on the basis of making a single copy, given that such students are, by definition, dispersed. I am sure the Minister of State will look favourably on these amendments as we know the Americans missed this issue in their legislation and are clamouring to find a solution. Let us not make the same mistake.
The basic change in education is that a large number of people now study away from schools and colleges using the Internet and other such means. We need to provide for this if we are to protect ourselves. If we retain section 52(4)(b) stipulating that copying should only refer to a single copy then it will not be possible to accommodate a group of people studying by means of distance education. I would welcome the Minister of State's acceptance of these amendments.
I support Senator Quinn on this issue. I am not sure that the amendments will achieve his objective but it is important that the Bill takes on board the concept of distance education. UCG engages in much distance education involving links with universities thoughout the world whereby someone based in Galway lectures to people in other countries. We will see much more distance education. I was not aware of the situation in the US but there is some validity in the concept and the principle involved. The Minister of State will have the advice of his officials as to whether the amendments will solve the situation but we need to take cognisance of this issue and make changes in the Bill to ensure that we provide for distance education.
I agree with the comments made by Senator Quinn. Our education institutions are increasingly making arrangements with other universities and colleges throughout the world, particularly in the UK. This is increasingly the case in all disciplines, particularly in management MBAs. I support this amendment.
Mr. Ryan
This amendment is necessary. The driving force behind this legislation is the US Government's desire to protect intellectual property rights. If the US is prepared to change its legislation to facilitate distance education it cannot then argue that others should not do likewise. I am not the greatest admirer of the US Government but it is capable of doing so and has done so in many other areas. It is enthusiastic about democracy at home but not so enthusiastic about it abroad. However, the US Government cannot argue this point in law before the WTO or any other body.
It is important to remember that distance education does not necessarily involve long distances. It can mean computer based learning within an institution by which academic staff send work via an intranet and where students are required to submit their work via the same method. This is done extensively. I know of one university in the US where all student assignments are made available by the college's intranet and students are required to submit their work to their academic supervisor in the same way. This system operates quite successfully. If this kind of instruction method is to become commonplace we must ensure that reasonable exceptions, which everyone accepts are valid, apply to that form of work.
A Leas-Chathaoirligh, can I confirm that we are discussing amendments Nos. 20f, a21a and 21e, and not amendment No. 21aa?
An Leas-Chathaoirleach
I will be as supportive as possible and I suggest that these amendments be re-submitted on Report Stage. I will ask my officials to examine the situation in the US outlined by Senator Quinn. I understand the Senator's concern that these exceptions for the purpose of the preparation of instructions should not apply to instructions by means of distance education. The word "instruction" is not defined in the Bill and it will be for the courts to interpret its meaning. However, it is considered that instruction by distance learning would be covered by this term but I will seek clarification, particularly with regard to the US situation.
Similarly the term "educational purposes" is not defined in the Bill but it is considered that distance education would be included in this term. I will seek clarification on this matter and suggest that we look at this on Report Stage.
On that basis I am happy to re-submit the amendments on Report Stage. I will try to find the information regarding the situation in the US. It is available on the Internet. The Americans have recognised the problems regarding distance education and are trying to find a way to correct their copyright legislation.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendment 21a is related to amendment No. 20g and these amendments may be taken together by agreement.
Mr. Ryan
I move amendment No. 20g:
In page 46, subsection (2)(a), line 28, after "by" to insert "or on behalf of".
I made a mistake in amendment No. 21a which should also apply to subsection (2)(a). I will come to that in a moment. I am intrigued by the retreat to monastic scriptoria implied in paragraph (b). We are going to allow copying, provided it is not be means of a reprographic process. That is astonishing. Apparently I am allowed to copy material for work as a academic provided I write it by hand. I am prepared to accept that photocopiers and scanners can and have been abused. Scanners just about fit within the definition of a reprographic process but that is an interestingly generous definition of a term which had a specific meaning up to recently. I find it astonishing that a blanket prohibition can be imposed on anyone involved in instruction to the point where they can copy materials in the course of preparation for instruction only if the copying is not by means of a reprographic process. That is an astonishingly broad prohibition on people working in education and instruction. My amendment deletes section 52(2)(b).
Is that not amendment No. 21?
Mr. Ryan
The first of the group is amendment No. 20g and the second is amendment No. 21a. I am sure I misled the Minister, although it was not deliberate, by pointing out an error in my amendment. Amendment No. 20g deletes the prohibition on reprographic processes. For a Bill which aspires to be technology-neutral—
Amendment No. 20g inserts "or on behalf of" after "by" in section 52(2)(a).
Mr. Ryan
I apologise. That means I did not make a mistake in the wording of the amendment. May I start again? What I said about the reprographic process can be dealt with later when we deal with amendment No. 21.
Amendments Nos. 20g and 21a insert "or on behalf of" after "by" in the section of the Bill which refers to the copying being done by a person. As it stands, it means that anyone in education instruction or otherwise who wants to use copyright material cannot ask a demonstrator, secretary or anyone else to make copies. They must be done by the individual. Considering what I am officially paid per hour, it would be cheaper to pay for the copyright on such material than have moderately well paid academics spend their time making handwritten copies. If there is to be an exception for instruction, the copying should be able to be done on behalf of the person who wishes to make copies and the copying should be able to be done by modern technology, including reprographic equipment such as photocopiers and scanners. The exception is meaningless if it does not allow the use of photocopiers. It brings us back to the days of the scriptoria in the old monasteries.
As an aside, I would not have become confused if this Bill were dealt with a few hours at a time rather than at such length.
I did not realise we had reverted to the monastic times. It appears a little crazy that the only way material for instruction can be copied from a book or article to give as a handout to students is to do it oneself by hand and that one cannot use a photocopier. I know there are difficulties with unlimited photocopying because it is so easy to do and that may be the Minister of State's difficulty, but the point is well made by Senator Ryan that we cannot possibly expect people to revert to handwriting a page from a book to give as a handout to students. Those days are long gone and students will not accept it, never mind lecturers having doing it and being paid large amounts of money per hour for so doing.
The amendments make sense. If they were not accepted, Members would be guilty of an offence as we often avail of the services of our secretaries to do necessary photocopying.
As someone who knows something about education, I can empathise with Senators' comments. I will consider this because I can see the point of the amendment. My advice suggests that there could be some doubt about whether the phrase "on behalf of" could be interpreted sufficiently strictly to rule out copying by third parties which would fall outside an exception designed to apply only to non-reprographic copying in a very limited situation. There is a point to be made about copying by an individual or on their behalf. I suggest the Senator resubmits the amendment for Report Stage.
Mr. Ryan
That is not a problem as I will resubmit all my amendments for Report Stage.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 21:
In page 46, line 30, to delete paragraph (b).
I have spoken on this and would like to hear the Minister of State's view on the prohibition on the use of reprographic processes.
The exception envisaged by this section is intended to cover acts of copying other than of the reprographic variety. Reprographic copying exceptions must be limited with particular rigour owing to the potential of photocopying to generate substantial erosion of copyright rights through the ease with which multiple copies can be produced by this method. Given the possible consequence of the amendment in this regard, I cannot accept it.
I listened to the Senator's earlier comments and this comes down to fundamental issues regarding rights holders and copying complete works. Fundamental questions are involved. As a former teacher I know and accept there would be general support for the Senator's position but this is a serious principle with which we are dealing. We are delving into the heart of ownership rights and the question of whether people can copy whole books and distribute them to students. The amendment may be a popular proposal but serious fundamental copyright principles are attached to the position I have taken. I cannot accept the amendment.
Mr. Ryan
We had best begin to organise handwriting classes in primary schools.
The position will be the same as exists at present.
Mr. Ryan
I presume we are talking about the 1963 Act. That was 36 years ago and a provision such as the one we are debating existed in those days when it was possible to enforce it. The photocopier was invented in or around 1959. Those were the days of the Gestetner about which Senator Quinn entertained us yesterday. Every home of moderate affluence has a scanner nowadays, every academic office has a photocopier and many students have scanners at home. Despite this, the Bill states that an academic may not copy material by a reprographic process even for the preparation of instruction or the putting together of a set of notes.
Are we on our way back to chalk and blackboards? How can a person copy material for use in distance education without using a reprographic process somewhere? How is material to be put into a form to be broadcast through an intranet, for example? Is the Minister of State indicating that we should employ a group of slaves to type the material page by page and then use a reprographic process to transfer the copy into electronic form to be used for the purposes of distance education?
It is not good enough to state that this is how things were done 36 years ago because, unlike the situation which obtained in 1963, it is no longer possible to police this area effectively. It would be much better to accept reality and impose conditions that are enforceable, in terms of quantity and legal obligations, by the agencies of which I am less than enamoured. The prohibition outlined in the section will not work but I cannot think of a sufficiently ludicrous analogy to illustrate my point. The phrase used in the section is meaningless and it is profoundly anti-progress.
I had intended to speak on this topic in respect of amendment No. 21aa. That amendment relates to section 52(4)(b) which states that subsection (3) shall not apply unless "the copying results in only a single copy being made".
Has the provision dealing with distance learning been given adequate consideration? We must recognise that chalk and blackboard and pencil and paper are not suitable for distance and other forms of modern learning . In the past five years, most of my children's communications on paper do not occur in hand-written form.
The wording used in the provision under discussion states that subsection (1) shall not apply unless "the copying is not by means of a reprographic process". There must be a better way to word this provision so that is will achieve what the Minister of State seeks to achieve without placing a prohibition on normal modern teaching methods.
Part of the difficulty with deleting paragraph (b) is that if a lecturer photocopied an entire book and handed out copies to his or students, he or she would without doubt infringe copyright. Such behaviour cannot be exempted. There is a need to guard against the use of scanners and photocopiers to make copies of this nature. The challenge for the Minister of State and his officials is to find a way to differentiate between a case where a teacher prepares notes for a class and makes 30 photocopies of one, two or three pages of an article for distribution among his or her students and a case where he or she photocopies an entire book.
Senator Ryan said that this happens often. It probably does, particularly in primary and secondary schools where resources are stretched. In order to save money, many schools might not buy books from distributors and pay royalties but they would merely photocopy inserts, workbooks, etc. If we state that we oppose breaches of copyright, we cannot condone any such breaches.
I do not know how the Minister of State and his officials propose to address this difficulty. Section 56 states that not more than 5 per cent of any work may be copied by or on behalf of an educational establishment. Perhaps we could include a provision which states that not more than a certain percentage of a book may be copied for educational purposes. If the provision is removed entirely, it would be left open to anyone who chooses to do so to make 30 photocopies of a workbook and distribute them to students. This would remove the need for the students to purchase the book and it would deny royalties to the author. That is not acceptable.
We must endeavour to achieve a balance on this issue. I suggest that it be given further consideration before Report Stage, at which point a suitable amendment might be tabled.
I acknowledge the origin of Senators concerns in respect of this issue. With regard to Senator Quinn's comments about distance learning, there is a need to consider that issue in the context of the amendment to which we referred earlier. I assure the Senator that we will look at this matter in conjunction with our consideration of previous concerns raised in respect of distance learning.
It is important to recognise that the part of the Bill with which we are now dealing involves education. We are discussing acts done for the purposes of instruction or examination and typographical arrangement of a published edition not being infringed by its being copied in the course of instruction or of preparation for instruction. We are dealing with a specific issue which has great relevance in terms of the use of photocopiers in schools.
I said earlier that the current position relates to the 1963 Act and we are trying to improve the position by means of the Bill before us. When we deal with section 56(2), which refers to reprographic copying by educational establishments of certain works, we will be debating this issue. It states in section 56(2) that "Not more than 5 per cent of any work may be copied by or on behalf of an educational establishment under this section in any calendar year." It is important that we deal with the broader issues involved. Members will be aware that the Department of Education and Science has put in place a blanket licence with the relevant collecting agency – the Irish Copyright Licensing Agency – in respect of photocopying. Therefore, there are structures in place to deal with this issue.
As Senator Cox said, we must try to deal with the public interest – in this instance that involves students and their welfare and the teachers who are trying to impart information to them – and the rights of the holders of copyright. When we deal with section 57, Members will get a better idea of what we are trying to do in the broader sense.
I will consider the distance learning issue in respect of Senator Quinn's previous amendment. However, I must be conscious of balancing the rights of copyright rights holders vis-à-vis the public good.
Mr. Ryan
When I spoke earlier, I should have referred to the connection between this matter and section 56. Is the Minister of State in a position to confirm that section 52 places no limit on the scale of copying? Am I correct in assuming that, provided they have an adequate typing or handwriting capacity, a person can copy as much of any copyrighted work as they wish under the conditions laid down in section 52?
I am intrigued that the section refers to something being copied for use "in the course of instruction or of preparation for instruction". To whom am I supposed to make the appropriate acknowledgment if the material being copied is destined for personal use? Preparing a copy for use in the course of preparation of instruction does not mean that I will use such material because, when preparing for lectures, I put together a great deal of material which I never use.
I am also intrigued about the purpose of this section, particularly in light of the provisions contained in section 56. I am of the opinion that elements were removed from different items of legislation and stuck together to form parts of this Bill and that insufficient consideration was given to the way they would interact. There are few cases in which one would want to copy by hand as much as 5 per cent of any work, not to mention more than that. I am uncertain about the purpose of section 52. It seems it is largely subsumed in section 56, but maybe I am missing something.
Am I correct in assuming that section 52(2)(b) means that no photocopying will be allowed? If that paragraph precludes photocopying, it does not fit in with section 56(2) which deals with a percentage of work that may be photocopied. That presents a difficulty because the provision in section 52(2)(b) is not enforceable and it does not make sense. Will the Minister of State clarify the position?
Section 52(2)(b) excludes multiple copying and photocopying, but that provision must be considered in the context of all of this section. Section 52(5) states that "Subject to subsection (6), the copyright in a work is not infringed by anything done for the purposes of an examination by way of setting questions, communicating questions to the candidates or answering questions.” That would allow for photocopying in that situation.
Amendment, by leave, withdrawn.
Amendments Nos. a21a and 21a not moved.
I move amendment No. 21aa.:
In page 46, line 39, to delete paragraph (b).
We discussed this amendment earlier and the Minister of State has noted it. I tabled it because if we are going to frame legislation to accommodate the needs of distance learners and distance education, it may be necessary to delete the line proposed in the amendment. I will retable it on Report Stage. I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 21ab:
In page 47, subsection (7), after "is" to insert "at the same time or".
Section 52(7) states "Where a copy that would otherwise be an infringing copy is made under this section but is subsequently sold. . . ". My amendment proposes that subsection (7) would read ". . . but is at the same time or subsequently sold. . . " The amendment is designed to cover situations where the permitted use and the infringement take place at the same time by virtue of the same act. I could envisage permitted use of a copy and the infringement of it taking place in the context of student broadcasting. The permitted instructional aspect and unpermitted further use could take place simultaneously. The amendment makes sense. It proposes the insertion of an additional five words, "at the same time or". If the amendment were accepted subsection (7) would read "Where a copy that would otherwise be an infringing copy is made under this section but is at the same time or subsequently sold, rented or lent. . . ". The wording in my amendment makes sense and adds clarity to subsection (7).
I am very tempted to accept this amendment. Will the Senator accept that the words "at the same time" may be implied in the wording of the subsection? Subsection (7) states "Where a copy that would otherwise be an infringing copy is made under this section but is. . . . " at which time the Senator wishes to include the words "at the same time or". . . . and the subsection continues "subsequently sold. . . " Can the Senator accept that the words "at the same time" could be understood to be implied in that statement? A legal argument could be as to why we should not insert the words "a week later" or the words "a month later". I would happy to include this amendment, if it is accepted by the parliamentary draftsman. If the Senator resubmits it on Report Stage and it is acceptable to the parliamentary draftsman, I will accept it then. The amendment takes account of the situation the Senator outlined.
I chose that wording with the intention that it would deal with the point I wanted to cover. If the parliamentary draftsman can find another form of wording that would better cover the point I am making, I will accept such wording.
Amendment, by leave, withdrawn.
Question proposed: "That section 52 stand part of the Bill."
I would like to quote briefly from a paper delivered by the barrister, Miss Pauline Walley, to the Copyright Association of Ireland on Tuesday, 15 June. It states that under section 52, copyright in a literary, dramatic, musical or artistic work or typographical arrangement is not infringed if it copied in the course of instruction by the instructor, not by a reprographic process, and with sufficient acknowledgement. The paper also states that a similar provision exists regarding copies of sound recordings, films, broadcasts or original databases with the added proviso that only one copy can be made, which we have discussed. The paper further states that the inclusion of a short passage from a literary, dramatic or musical work, original database or typographical arrangement of a published edition of an edition of educational anthology, where the material is mainly non-copyright and the original work is not intended for use in these establishments, will not be an infringement of copyright. I accept that the Minister of State will examine the matters raised in the various amendments with a view to accepting some of them on Report Stage.
Mr. Ryan
I will not go back over what we have discussed. I would like to know the Minister of State's rationale for including this section. What is it designed for? Is it simply to avoid situations where people make notes out of books and to avoid the Irish Copyright Protection Association descending on them or what is it for? I am intrigued by subsection (5) which provides an extraordinary blanket exemption. It states "the copyright in a work is not infringed by anything done for the purposes of an examination by way of setting questions, communicating questions to the candidates or answering questions."
Every chemical engineering textbook I have used in my less than distinguished academic career contains at the end of every chapter banks of questions, many of them perfectly suited for exams I have to set. My advice was always that it was illegal to use those questions in an exam because they would in breach of copyright. I am delighted to discover that I have a blanket exemption to use other people's questions when I set exams. I do not agree with that extraordinary exemption. I think it was put in to make life easy for the Department of Education and Science, without thinking it through because they do not want to be subject to the inconveniences of ordinary mortals. Section 180, which I mentioned last night, illustrates that point also about Government Departments. I find it astonishing that anything in a textbook can be used anywhere in terms of asking a question. That is far too generous and I do not think the use of such material even requires acknowledgment. I am pleased about it, but it should not be there.
The section is included because it is important that we recognise the need for the use of outside material, particularly by schools. The section provides that the copying of such material will not infringe on a copyright in a work. It was mentioned earlier in the debate that in certain circumstances where it is not possible to make a copy, for example, on a cassette tape, the person who uses the copy will not buy it so there is no benefit to be gained by the person who owns the rights. This section is an effort to ensure that people who may have been doing this in the past will be able to continue to do so in the interests of education while not breaking the law by infringing copyright.
I thank Senators for their comments on the section. On the question of examinations, one is talking about reasonable limited exceptions. I do not want to open up the debate by looking at this in detail but this section deals with examination questions and is slightly more extensive than the Copyright Act, 1963. Section 52 (5) includes the communicating of questions to candidates, which is considered essential in a digital environment where questions can be communicated to candidates by different means. The section is even more extensive than Senators think. The formulation adopted in section 52 (5) is considered to be technology neutral and will facilitate the long life of the Bill.
Question put and agreed to.
SECTION 53.
Mr. Ryan
I move amendment No. 21b:
In page 47, subsection (1)(a)(i), lines 16 and 17, to delete "and is so described in its title".
Section 53 refers to exemption from copyright and actions which will not be recorded as in breach of copyright and in this case relates to anthologies for educational use. Understandably, conditions are attached, one of which is that the anthology can contain short passages from a literary, dramatic or musical work, etc. I was tempted to ask the Minister to define "short" but I will not. Section 53(1)(a) specifies if it is "intended for use . . . . . in educational establishments . . . . . or in any advertisements issued by or on behalf of the publisher". It is somewhat mean minded to include "and is so described in its title" in that paragraph. This is unduly prescriptive and unnecessary. My amendment proposes that subsection (1)(a)(i) should read "in educational establishments" and that the phrase "and is so described in its title" should be removed. I plead with the Minister not to tell me there is an international convention applying to this.
The exception provided for by section 53 applies to anthologies specifically designed for use in educational establishments. There are many other anthologies which may be used in educational establishments but which also enjoy a wider market. It would represent an excessive interference with the ability of authors of copyright works to allow such anthologies within the scope of an exception specifically designed to be confined to an educational context. We are talking about anthologies specifically designed for educational purposes. If qualifying and non-qualifying anthologies are to remain distinguishable, it is necessary that those looking to qualify should describe their specific purpose as being for use in educational establishments. This is logical and sensible. I cannot accept the Senator's amendment.
Mr. Ryan
It is understandable that the Mini ster will not accept this amendment as he has not accepted any up to now. If he is trying, correctly, to ensure we leave some limited scope for anthologies which are to be used, the solution would be to say they could only be sold in educational establishments. These anthologies which would be published in a collection intended for use in educational establishments could be sold in every bookshop and all that would be necessary to state is that "This is for use in educational establishments". There is no prohibition on outlets where they can be sold. Wonderful anthologies, which comply with the law, might not see the inside of an educational establishment.
If the objective is to protect copyright by restricted anthologies to educational establishments only, the correct procedure would not be to introduce another prescription but to state they should only be sold directly to educational establishments, if that is what the Minister wants to do. However, as it stands, it is a token, it is extra bureaucracy which can be tagged on by anyone. It does not state that they must be specifically intended for use in educational establishments. Every anthology could be intended for use in educational establishments.
If it stated "For use in secondary schools" it might scare off budding intellectuals who wish to pretend they are beyond that. If one wants to protect copyright in this section, it should state they should only be sold directly to educational establishments. Otherwise, the Minister should leave it and hope for the best. Including the aspiration "and is so described in its title" will not make the slightest difference to who buys it.
One could have books sold in university bookshops. We need to have a distinguishable difference between qualifying and non-qualifying anthologies. For that reason, I cannot accept the amendment.
Mr. Ryan
There is no connection between the argument and the reason. The Minister said he cannot accept the amendment for that reason. I am happy to suggest that we should include either "sold to" or "in" educational establishments. Will the Minister please tell me what is the point of requiring people who produce a work to use the term "and is so described in its title"? It can be sold in Eason's, Waterstone's, etc., where anyone can buy it. What difference will it make to the copyright owner? None whatsoever. Anyone who wants to buy it can do so and including that will not make the slightest difference as they can sell it anywhere they wish.
Question put: "That the words proposed to be deleted stand."
Tá
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.
|
Cox, Margaret.Cregan, John.
|
Tá–continued
|
Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.Glynn, Camillus.Kett, Tony.
|
Kiely, Daniel.Kiely, Rory.Leonard, Ann.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.
|
Níl
|
Caffrey, Ernie.Coghlan, Paul.Connor, John.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Gallagher, Pat.Manning, Maurice.
|
McDonagh, Jarlath.Norris, David.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ross, Shane.Ryan, Brendan.
|
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators Quinn and Ryan.
Question declared carried.
Amendment declared lost.
I move amendment No. 21c:
In page 47, subsection (2), line 25, after "from" to insert "a work or".
This is a simple amendment to the subsection so that it would read "shall not authorise the inclusion of more than two excerpts from a work or works by the same author". The amendment is to cover situations where there is more than one excerpt from the same work included. It is a sensible suggestion to add three words –"a work or". It is a case of tidying up.
My advice is that the term "works" incorporates "a work". I am happy to include it if it helps but the parliamentary draftsman would agree with me on a purely grammatical basis that "works" would cover "a work". I do not have a problem asking the parliamentary draftsman to look at it and if it does what the Senator wants, that is fine. My own view is that it unnecessary. We will, however, have it double checked.
I will resubmit the amendment on Report Stage. It is needed. It will cover a case where a person used excerpts and then claimed that they were not covered.
Amendment, by leave, withdrawn.
I move amendment No. 21d:
In page 47, subsection (2), line 26, after "publisher" to insert ", or by another publisher or publishing imprint where that publisher or imprint is effectively controlled by the first publisher,".
The purpose of this amendment is obvious because these days there are many publishers imprints and we need to remove any doubt that people could avoid the thrust of this section by working through different imprints. The amendment closes that potential loophole. It was suggested to me by a person who said they believed it would overcome somebody who wished to get around the law by working through a different imprint. I took advice on this matter, which seemed sensible.
I would like to ask the Minister for clarification. In the world of music publishing, the assignment of the work goes to the first publisher. No publication of that work can be effected without the prior permission of the first publisher. Once it is published, it can then be copied by anybody as long as royalty payments are made and there is public recognition of the first publisher. To understand from where Senator Quinn is coming and to help the debate, will the Minister clarify whether this amendment is needed in legal terms? Does it not confuse the situation by adding another layer which, in legal terms and if the matter were to come to litigation, needs to be proven in court?
My advice is that the term "publisher" suffices in this case and a publisher would be liable through subsidiary. This amendment could confuse the situation and I strongly advise that we leave the word "publisher" as is in the Bill.
My heart is not in it in that I do not want to confuse the situation. I tabled the amendment on the advice of someone who believed there was a loophole which could be used to get around copyright law. Perhaps the Minister will confirm with the drafts people that is correct, otherwise I plan to resubmit the amendment on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 21e not moved.
Section 53 agreed to.
SECTION 54.
I move amendment No. 21f:
In page 48, subsection (4), line 12, after "Minister" to add "for Education and Science".
Senator Ryan will not like this amendment because, as far as I can gather, he has a principled objection to provisions which seek to divide responsibilities between Ministers. I heard him speak on this issue before. If we are to include such a provision in legislation, this is one place where we need it. Section 54(4) states: "The Minister may specify by order establishments (other than schools) to be educational establishments for the purpose of this Act." This should be the Minister for Education and Science.
The idea of the Minister for Enterprise, Trade and Employment specifying by order that an establishment qualifies as an educational establishment without a necessary involvement of the Minister for Education and Science sticks in my throat. The job should be done either by the Minister for Education and Science or by the Minister in consultation with or with the consent or approval of the Minister of Education and Science, but not on his or her own.
I concur with the latter part of the Senator's submission in that in this case there will be consultation. For the purposes of this legislation, it is intended that the Minister for Enterprise, Trade and Employment will specify the educational establishments for the purpose of this Act as these relate to uses of copyright material. As the Senator rightly said, the Minister for Education and Science will always be free to offer advice and suggestions in this regard. That consultation process will take place. The Senator will appreciate that this legislation was initiated in our Department and that it will be the Minister who will specify the establishments. I accept the Senator's point that there should be consultation, and I will take it on board.
Since I came to the House seven years ago, every Bill seems to contain the words "with the approval of" or "with the consent of", so I understand Senator Ryan's point. A second or third Minister seems to be included in every Bill. I imagine that when this Bill comes back from the other House we will find the words "with the approval of" or the "consent of" another Minister. It is usually the consent of the Minister for Finance which is sought, and I am glad he or she is not mentioned here.
If we are talking about an educational establishment, the inclusion of Minister for Education and Science is needed even if it states "with the approval of the Minister for Education and Science". I am not pushing that it is an essential part of it. The Minister said it will happen, and I am sure it will. I do not understand why this is the first Bill I have seen without a requirement for the approval, consent or involvement of another Minister.
It is a question of technical administration in that Ministers bringing legislation before this and the other House will obviously bring in various orders. In practice, I assure the Senator that, in the context of an initiative by a Minister, especially in relation to education, the Minister of the line Department will be consulted. Purely from the point of view of efficiency, this is the way it is done. I presume if the Minister for Education and Science introduced legislation which impacted on employment, he would take the lead role. This is to avoid complication and dual responsibility and I assure the Senator that it works.
I do not believe I have ever seen a Bill end up without the words "with the approval of" or "consent of" other Ministers. I thought I was likely to see it here, so I thought I would get the credit for including the Minister for Education and Science. I would not be surprised if the Minister for Education and Science appeared somewhere by the time this Bill is completed.
Amendment, by leave, withdrawn.
Question proposed: "That section 54 stand part of the Bill."
Mr. Ryan
I find section 54(3) profoundly offensive. It is absolutely ridiculous that a school concert by school children for their parents is covered by copyright law. To write into legislation that for the purposes of this section, a person is not directly connected with the activities of an educational establishment by reason only that he or she is parent or guardian of a pupil in attendance is profoundly anti-school, anti-parental involvement and unworthy of us as legislators. I have no patience with this provision which relates to a school concert confined exclusively to the children and teachers of a school for the parents of those children. To write into legislation that parents are not persons connected with an educational establishment is an outrage. I have no sympathy with the people who own the music or anybody else. If children can run a concert in school for themselves and their teachers, their parents should be able to attend without imposing a burden of copyright fees on the school.
I am sure the Minister can adequately reply to this old chestnut which arose a couple of years ago when the Minister for Education of the day was pilloried because there was a suggestion that inspectors of licensing authorities would go into every school in the country looking for sums of money, in most cases small sums, to add to the somewhat depleted coffers of the Exchequer, all at the expense of the poor old school concert.
This has the same resonance as the argument put forward by certain parties a few years ago, who refused to pay public performance royalties, when they kept referring to the little old lady in the corner shop. The view of those putting forward the argument that they should not pay royalties was that the little old lady in the corner shop – who never actually existed – had this radio as a comfort to her in her old age and, therefore, it was a terrible state of affairs that this big bad licensing agency should look for money from her. Nothing was further from the truth. In the instance to which Senator Ryan refers, I suggest, without equivocation, that the reality would be much different from the scenario he attempts to paint. It is yet another scare tactic to suggest that the inclusion of the section will impinge on school concerts, parents, children and so on.
I will put a contrary view. A couple of years ago, because of the inadequacy of the collection agencies licensed by the Government, individual composers had to go after the record companies in order to get their due rights. Is the Senator suggesting that by omitting this section composers or authors who are entitled to their copyright and who do not wish, as a matter of law and of right, to have a licensing agency or third party collect on their behalf are not entitled to do so? The deletion of the section would mean precisely that.
Progress reported; Committee to sit again.
Sitting suspended at 5.35 p.m. and resumed at 6 p.m.
