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

Debate resumed on amendment No. 40:
In page 46, to delete line 30.
–(Senator Ryan.)

Senator Ryan was in possession.

Mr. Ryan

This is an amendment to deal with the antediluvian proscription on the use of reprographic equipment to make copies. Without going back over material, a matter that has been raised in this debate by myself, the Labour Party, the Independent benches and Senator Cox is the need to recognise the nature of the world in 1999. It was probably possible 25 years ago to restrict the way in which people use photocopies and other kinds of photocopying equipment. It is not possible now and there has to be a different approach to deal with making copies. As I said before 4 o'clock I suspect, in another five years, at least every second middle class household will have a scanner as part of the standard computer because they believe it will advance their children's education. God bless their innocence but they are going to do that.

I am not sure what is the objective of putting in such a prohibition. It is either unenforceable or it requires a manner of enforcement which, as I said a couple of times before, would be effectively totalitarian. The only way to do it would be to require that all reprographical equipment would contain some means of storing everything copied on it, so that the copyright inspector could check on individuals. An alternative approach would be to put strong emphasis on use for commercial gain of any material copied. Genuinely I think copyright holders will have to live with a small degree of financial loss because of the way copying is possible. The actual loss to copyright holders of what is copied by reprographical equipment is quite small because if photocopies did not exist most people would not bother with the material. The idea that they would buy the book, or buy extra copies of the book, if they could not copy it is naive in the extreme. Therefore, what I am saying here is that we should get rid of something that is unenforceable and out of date and would only sit there and give the impression that we were looking backwards when going though this legislation.

I second the amendment. Will the Minister's officials find out for me what happened today in England where Hockney photocopies were sold? Apparently, despite great dismay by the Hockney family, nothing could be done about this. They were not sold for extraordinary prices but I have only a television report of today. Perhaps the Minister's officials will find out what happened because it seems to have caused great uproar with copyright in the United Kingdom. Certainly it was on the English news but I cannot say on what channel. Good photocopies were sold and it was said you could buy a genuine Hockney print, go into the photocopying agency next door and set up selling them. That is happening outside the law there. As Senator Ryan said, to keep track of this will be very difficult.

I second the amendment.

I support the amendment which seeks to delete "the copying is not by means of a reprographic process,". I am not sure I understand what the intention of this is and why it was included. However, on the basis of the explanation given by Senator Ryan I certainly support it but I am trying to find out what are its objectives and what it hopes to achieve.

The concern here is about the reprographic copying. Throughout the Bill the concern is that this must be limited with particular rigour owing to the potential of photocopying to generate very substantial erosion of copyright rights through the ease with which multiple copies can be produced by this method. Having listened to the debate earlier in relation to distance education and the points made by three Senators on my right, there is a need to reconsider this proposal. Senators have made a valid point about photocopying and its place in education in general and in particular in distance education. I am not in a position to accept the amendment right now but I assure Senators this question will have to be reconsidered in that context. Unfortunately, I cannot accept it at this stage but I assure the House that whoever is in this position, and whatever time we need to address it, will address it. On the question of control and the substantial abuse of photocopying it is important to hold the line at this stage. However, there is an issue that has to be addressed.

Mr. Ryan

Even after our argy-bargy for the last two hours I feel reasonably well disposed towards this Minister, whatever about the Minister who was here earlier.

He is smiling.

Mr. Ryan

I am not entirely sure why he cannot accept the amendment now given what he said. After all he can reintroduce it in a different form of words in the other House if he wishes and we would be happy to welcome him back to discuss it. I am sorry he did not address the basic issue which is the multiplication of reprographic equipment. It is not just something you can find in one shop in every small town or in six shops in Cork and 50 in Dublin; it is something that will be in virtually every home, and that is as a scanner. On top of that there are other forms of reprographic equipment as defined in the Bill which include taking an image off the Internet and printing it.

The quality of printers available to people at home is infinitely better than it would have been five years ago and indescribably better than it would have been ten years ago. My genuine concern is not to put into our legislation prohibitions that are no longer enforceable. The line the Minister should consider between now and the completion of this Bill is the question of copying for commercial purposes because the argument for all sorts of sectors of special interest on the pro copyright side is that they are losing money. If most of the copying that is done could not be done using photocopiers, it would not be done at all. I do not know anybody in academic life who would take any of the major journals or any of the major textbooks in any area and hand copy data about anything to do with their subject simply because of this. If there was any sign that this was going to be enforced, they would simply not use it, drop it and tell students to go look for it in the book in the library. We are not taking money away from people, but those who possibly use technology to sell material deserve to be dealt with quite severely. That is not a problem. There is, however, a problem with the proliferation of technology with which we must deal.

I will ask my officials to check that issue in relation to Hockney photocopiers.

Thank you.

Acting Chairman (Mr. Dardis): Senator Ryan, are you well enough disposed to withdraw the amendment?

Mr. Ryan

I am.

Amendment, by leave, withdrawn.
Amendments Nos. 41 and 42 not moved.

I move amendment No. 43:

In page 46, to delete line 39.

If we are to frame the legislation to accommodate the needs of distance learning, it may be necessary to delete this line. I do not see how one could carry out distance learning on the basis of making a single copy. I have been involved with the Irish Management Institute and the marketing institute over the years and much distance learning goes on there. I am not talking about modern technology but about old-fashioned technology of actually photocopying something and sending it out. It is all right if everyone is in the one class in that I can see what one can do but students engaged in distance learning are, by definition, dispersed. I do not have a solution to this problem other than to delete this line. That is the reason I tabled this amendment, which makes sense. Obviously, one does not like to delete anything which has been included for a purpose but it is the only solution I can see, although there may be another one.

I second the amendment.

I do not want to repeat myself but we are coming back to the Berne Convention again. The danger here, to which the Senator rightly alluded, is that the amendment proposed would allow for unlimited copies, in strict legal terms, to be made available of the specified works which would be in breach of the international obligations I am under. I repeat there is an issue which needs to be addressed in the context of distance learning. I echo the comments I made earlier on distance learning to which the Senator rightly referred and, putting those comments in context, it is an issue to which I need to come back.

I oppose the amendment and ask the Senator not to press it. I believe he understands that there are certainly things to which I must adhere under law, and this is one under the Berne Convention. There is a real danger here that, legally, we would allow for unlimited copies of the specific works to be made available. In that context, I ask the Senator to withdraw the amendment.

I understand what the Minister said and was not anticipating any more than that, other than the fact we have had three months in which to look at it. I hope we find a solution in the coming months because it seems a shame that, by leaving this sentence here, we inhibit educators from doing what they traditionally have done and intend to do in the future. I withdraw the amendment. I understand what the Minister said and I hope he will strive to find a solution to this issue which has not been found in recent months.

Amendment, by leave, withdrawn.

I move amendment No. 44:

In page 47, line 7, after "is" to insert "at the same time or".

This amendment is to capture situations where the permitted use and the actual infringement itself take place at the same moment by virtue of the same act. Again, I hoped this might have been looked at the past few months. I could see this happening in the context of student broadcasting. Quite a lot of this goes on and it is worthy and has educational value in schools. The permitted instructional aspect and the unpermitted future use could take place simultaneously. I suggest inserting, "at the same time or" in line 7 on page 47 which reads: "Where a copy that would otherwise be an infringing copy is made under this section but is subsequently sold, rented or lent. . . . " That should overcome the particular problem. I cannot think of any other problem it creates and, therefore, I hope the Minister will consider that amendment, which I also tabled on Committee Stage. The Minister asked me to resubmit it on Report Stage and said he would check with the parliamentary draftsman to see if he would accept it because it seemed to be logical.

I second the amendment.

As the Senator asked, I went back to the Attorney General on this issue and was advised that subsection (7), as drafted, is sufficiently clear and requires no amendment and would take account of the views he expressed. Purely in drafting terms, I am advised that what is in the Bill is adequate to meet the Senator's wishes. On that basis, I have nothing further to add, but I appreciate what the Senator said. The Attorney General's advice is that what the Senator wishes to achieve will be achieved by leaving the word "is" and not adding "at the same time or".

I am certainly not going to argue law with the Attorney General. If he says he is happy that is covered in the particular instance I gave, I accept that and withdraw the amendment. Senator Ryan referred earlier to his concern about being run by the Attorney General and by legalese rather than by logic. It is a concern I would express as well. I accept the Attorney General's advice to the Minister and I hope it is the correct thing to do. I withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Ryan

I move amendment No. 45:

In page 47, line 16 and 17, to delete "and is so described in its title".

This is not an amendment on which I will delay the House very long. The section to which I propose the amendment is about anthologies for educational use. One of the requirements is that such anthologies should be intended for use in educational establishments and that this should be so described in their titles. That is a little petty and there is no need for it. What purpose is achieved? They either are or they are not. To prescribe this will not make any difference to the publishers, to me or anybody else. It is unnecessary and, therefore, my amendment suggests that the phrase and "is so described in its title" be deleted.

I second the amendment.

As someone who comes from the teaching profession, I will give the Senator the background to this. I know from where the Senator is coming. The exception provided for by section 53 is designed for anthologies specifically designed for use in educational establishments, and I use the word "specifically". There are many other anthologies which may be used in educational establishments, as the Senator will be aware, but which also enjoy a wider market. I made this point the last time we spoke on this issue. It would represent an excessive interference with the ability of authors of copyright work to allow such anthologies within the scope of an exception designed very specifically to be confined to a specifically educational context. I pointed out before that if qualifying and nonqualifying 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. In view of this, I hope the Senator will understand that I cannot accept the amendment. I have outlined a fair position and I hope the Senator will accept it in good faith.

Mr. Ryan

I wonder what difference it will make. We can put the title of the anthology in 25 point at the top the page and then in asterisks, like the financial institutions when they put in the warnings about what might happen to us if we borrow money, in print so small at the bottom that nobody except the most diligent lawyer will find it. What good does that do other than to meet some ritualistic legal requirement? It will do no good at all. I will not delay the House on it, but it is meaningless, unnecessary and will achieve no purpose. It will not prevent anyone from stealing copyright they were otherwise going to steal; it will do nothing to protect people's copyright. It is just a phrase someone thought up and we could do without it in my book.

Amendment put and declared lost.

I move amendment No. 46:

In page 47, line 26, after "from" to insert "a work or".

This amendment is easy and simple. It is designed to capture cases where more than one excerpt from the same work is included. The section provides that "Subsection (1) shall not authorise the inclusion of more than 2 excerpts from works by the same author . . . ". If there were two excerpts from one work it is not included and I want "a work or works" included, which requires three extra words. It improves the Bill and covers the matter, because somebody could say "a" and there could be two excerpts, not from "works" but from "a work". It is technical and detailed but it is an effort to ensure nobody finds a loophole. It makes sense and the logic for it is there, as the provision would read ". . . shall not authorise the inclusion of more than 2 excerpts from a work or works by the same author . . . " and I am sure I have convinced the Minister of State to accept it.

I second the amendment.

I will try to be as co-operative as I can later, but there is no point in accepting this if my advice from the Attorney General is that "works" accounts for the very point Senator Quinn makes. I have made the point before that "works" incorporates "a work". We are down to matters of language and the Attorney General's office has advised me that this is the case. I ask the Senator to withdraw his amendment on the basis that what he seeks is achieved by using the term "works". That is my position.

I will not withdraw the amendment. I think it is correct and it is bad English to say "works" when one should say "a work or works". I will not withdraw the amendment.

Amendment put and declared lost.

I move amendment No. 47:

In page 47, line 27, after "publisher" to insert ", or by another publisher or publishing imprint where that publisher or imprint is effectively controlled by the first publisher,".

This is on the same section and my purpose is quite obvious. With so many publishers' imprints around, we need to remove any doubt that people could avoid the object of this section by working through different imprints and this amendment closes a potential loophole that might be left open. The amendment strengthens the Bill and is understandable if one takes the point. There are many publishers' imprints around and we need to remove any doubt that someone could get around this provision. That is why I put down this amendment, which provides ". . . or by another publisher or publishing imprint where that publisher or imprint is effectively controlled by the first publisher,". It makes sense and strengthens the Bill.

I second the amendment. There could be abuse in this regard and I hope the Minister of State will accept the amendment.

I promised the Senator I would consult the Attorney General on this matter and I am advised that the term "publisher" incorporates the wording of this proposed amendment, so what I have produced in this legislation takes account of the situation that Senators Quinn and Henry have raised. I ask the Senator to withdraw his amendment on the basis that his concerns are accommodated in the wording of the Bill.

I will take the Minister of State's advice.

Amendment, by leave, withdrawn.
Amendment No. 48 not moved.

Mr. Ryan

I move amendment No. 49:

In page 48 to delete lines 8 to 11, and substitute the following:

"(3)For the purposes of this section a parent or guardian of a pupil or student in attendance at an educational establishment is a person directly connected with an educational establishment.".

I warn the Minister of State that we are getting to amendments that were moved on Committee Stage in my absence and he may have to forgive me for dealing with matters which have been dealt with before. However, even if he does not forgive me I will have to do so anyway.

Acting Chairman

The question is whether I will forgive the Senator.

Mr. Ryan

The Chair is always fair-minded. This amendment refers to section 54 and the mar gin text states "Performing, playing or showing work in course of activities of educational establishment." Section 54 states that

The performance of a literary, dramatic or musical work before an audience limited to persons who are teachers in or pupils in attendance at an educational establishment or other persons directly connected with the activities of that establishment . . . ".

It means one can do this without breach of copyright, which seems a perfectly reasonable idea to most people, except that subsection (3) states:

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 a parent or guardian of a pupil in attendance at the educational establishment concerned.

I find that offensive and astonishing. It is a complete breach of the central theme of our country's educational policy, which is that education is a partnership between parents, teachers and the State. To put into legislation a statement as bald as this, which states the exact opposite, is a nonsense. It is even more nonsensical because one could have a performance in the school and the cleaners could attend, as they are persons connected with the educational establishment, and it would not be illegal. The person who makes the tea for the teachers for half an hour in the morning could attend, because clearly that person is "directly connected with the activities of an educational establishment". The plumber who fixes the toilet when it does not work is directly connected, as is the electrician who fixes the electricity. However, the parents of the children cannot attend because we are telling them that, in defiance of logic, they are not directly connected with the educational establishment. That is wrong and I do not care whether a lobby group, be it IMRO or anyone else, has made a different case. It is illogical.

It is perfectly reasonable to say that if an educational establishment puts on a show which is open to the public that they should meet their legal obligations, but to assert in legislation that parents are not directly connected with an educational establishment flies in the face of educational philosophy and common sense. My amendment seeks deletion of that assertion and substitution of a statement of the fact that parents are directly connected with the educational establishment, which is the case.

I second the amendment. I do not know where this came from. Who else is going to go to there? Parents make up the one group of people we are trying to get involved in the education of children, yet here we are saying that if there is a show or performance to put on, this will not do. We describe parents as the primary educators of their children and constantly try to encourage their involvement in the education sys tem. I do not see that anyone will enforce this anyway.

I support this amendment. All of us, as our children grew up, went to school concerts. If it was open at a professional or semi-professional level to the town or village and an entry fee was charged then I would expect copyright fees to be paid. However, when parents come to watch their children play it is over the top and unacceptable for them to discover that they are specifically excluded. I support the amendment.

As someone involved in teaching and in staging Christmas concerts I am close to this issue. I am conscious of the points made in trying to ensure fair play for everyone. However, we are going back to standards set in international copyright law regarding educational exceptions. It is important to stress that the activities of the establishment are teaching, not cleaning or making tea. The effect of the amendment would be to allow free use of works in situations going beyond teaching, including activities involving parents and guardians which, strictly speaking, are not connected with an educational establishment in its teaching role.

Mr. Ryan

That is not true.

Acting Chairman

The Senator will have his chance.

Mr. Ryan

But it is just not true.

The point is that if schools use copyrighted music to run concerts which raise money they are liable to copyright royalties.

Mr. Ryan

That is what the Minister of State should have said.

I know this because I was involved in a school which ran many professional concerts into which a lot of good work was put. We might have been performing "Oliver" or whatever, and that was always the way it was. One always had to pay royalties in cases where one charges an entry fee. If schools use electricity they pay the ESB. We are talking about copyright and the rights of copyright holders.

The Bill seeks to provide protection and exceptions for teaching and the work of teachers and pupils within the educational framework. That is why we introduced exceptions on photocopying. One must draw the line somewhere in law. Much as I would like to accommodate the sentiments expressed by Senators, the truth is that we have legal obligations with regard to copyright and rights holders. This is nothing new with regard to the 1963 legislation. As a teacher I was involved in the production of musicals and so on when the hall was open to parents. As parents we have all gone to Christmas concerts at which we had to pay an entrance fee. That is what we are talking about. We are trying to delineate between educational usage involving teachers and pupils. We have done so throughout the Bill concerning issues such as photocopying, performances, the use of televisions and so on. However, we must make this distinction in the interest of rights holders. That is why I cannot accept this amendment.

Mr. Ryan

The Minister of State is a reasonable man but even the most reasonable of Ministers cannot defend the indefensible, and he did not do a very good job. There is nothing in the section which states that people must have an educational role to be directly connected with the activity of the establishment. Therefore, anyone who works in the establishment can attend. We are at one that, if a school is attempting to raise money, then it should pay its lawful debt to copyright owners. However, it is nonsense to insert into primary legislation a statement that a person is not directly connected with the activities of an educational establishment "by reason only"– and I like the phrase, "by reason only", as if there were other, better reasons to be connected to a school – of being the parent of a child.

This section is there because IMRO reckons there is money to be made out of schools and it has been putting pressure on schools to pay up. That is the wrong reason to include this section. I am prepared to support every protection where people are making money out of other people's copyright. I do not believe in theft.

The Minister of State and I know that copyright never crossed anyone's mind in half of these establishments. However, once this provision goes through, IMRO will go to every school and say that they must pay a sum to cover copyright. We are facilitating a particularly unpleasant activity by IMRO and there is no need to do so. If people are raising funds for a school and attract people who are not parents then one is in a different situation. However, to try to suggest in primary legislation that parents are not directly connected with the school their kids attend is turning logic on its head. I do not think the Minister of State is too enthusiastic about this section. He said that there were international conventions but he has not told us about any of them in specific terms. He did not mention one convention which says that parents must be treated like this.

I have a suspicion that the position is not like this is more enlightened countries. We are late in our commitment to parental involvement in education. For many reasons we have been slow to recognise parents as full partners in education. This phrase will come back to haunt the Minister of State when parents' organisations realise that the Government put through legislation which said that, for the purposes of copyright, they were not really connected with the schools their kids attend. There is no logic to it. There is a perfectly defensible position which protects copyright but which does not involve the exclusion of parents. This is an IMRO con trick to get royalties under dubious circumstances and it is unworthy of it.

Question put: "That the words proposed to be deleted stand."

Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Dardis, John.Farrell, Willie.Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.


Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Coogan, Fintan.Costello, Joe.Hayes, Tom.Henry, Mary.

Jackman, Mary.McDonagh, Jarlath.O'Dowd, Fergus.O'Toole, Joe.Quinn, Feargal.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Quill; Níl, Senators Quinn and Ryan.
Question declared carried.
Amendment declared lost.

I move amendment No. 50:

In page 48, line 12, after "Minister" to add "for Education and Science".

This amendment relates to performing, playing or showing works in the course of activities of educational establishments. The Minister may specify by order establishments, other than schools, to be educational establishments for the purpose of this Act. I know that Senator Ryan, for once, will not like this because he has a principled objection to provisions which seek to divide responsibilities between Ministers.

My point is that if we are going to have such a provision in legislation, this is one place where we actually need it. The idea that the Minister for Enterprise, Trade and Employment, who is the Minister referred to here, would specify by order that an establishment qualifies as an educational establishment without any necessary involvement from the Minister for Education and Science is not acceptable. The job should be done either by the Minister for Education and Science or by the Minister in consultation with the Minister for Education and Science. It seems correct to me that the Minister referred to should be the Minister for Education and Science. My proposal makes sense and I hope it will be accepted by the Minister of State.

Mr. Ryan

I second the amendment and surprise Senator Quinn. I actually asked Senator Henry to do this because I agree with him completely. The idea that any other Minister than the Minister for Education and Science should define what is an educational establishment is a nonsense – I am tired of using that phrase. Only one Minister is in a position to decide what is an educational establishment and he or she is the Minister for Education and Science.

I thank the Senator for his amendment, which could result in the Minister for Education and Science specifying the educational establishment for the purpose of this Act. It is the intention that the Minister for Enterprise, Trade and Employment will specify these establishments. However, I can assure the Senators that in practice the Minister for Education and Science will be consulted when educational establishments are being specified for the purposes of this Act. I, therefore, request that this amendment be withdrawn.

We went over this ground before. From a management point of view – I know Senator Quinn has a great deal of expertise in that area – there are demarcation lines. I suppose I could say to him that this is our Bill and it is our Department but, having said that, the way the system works is quite straightforward. The Minister for Education and Science will be consulted as a matter of course. There is no doubt about that. I assure the Senator that the thrust of what he put forward will be implemented, but I ask that this amendment be withdrawn.

I find it difficult to do so. It seems to me that if one is trying to define what is an educational establishment, it is either done in consultation with the Minister for Education and Science or by that Minister. If the Minister of State is saying that is what will happen but we will not bother including it in the Bill, I point out that we are not talking about present practice but about a Bill which we hope will become an Act which will last for many years. I want to copperfasten the approach that it should not take place without consultation with the Minister for Education and Science. On that basis, I prefer not to withdraw the amendment.

Amendment put and declared lost.

Mr. Ryan

I move amendment No. 51:

In page 48, to delete lines 21 to 23.

We come back to all these peculiar matters. The reason I make some of the more, perhaps, belligerent remarks about this is because there are two separate issues involved in this legislation, the first of which is the absolutely important defence of the right of individuals to have the rewards from their own work and to prevent these from being taken from them. However, the second is the dubious one of making life easier for certain organisations. Section 55 makes certain exemptions from copyright. There are a number of sections like this, including one which is obviously designed to refer to making Braille copies later. In each case there is a sensible and reasonable exclusion, exemption or space in which, for instance, in this case an educational establishment can record broadcasts and cable programmes for educational purposes to be used in the school. That is fine and I thought everybody would see that as reasonable, but subsection (2) states:

This section shall not apply where there is a licensing scheme certified under section 166 and the person making the copies knew or ought to have been aware of the existence of the licensing scheme.

Thus, one may have a wonderfully sensible exemption but somebody gets a licensing scheme going over which the educational establishment will have no say. It will not be something which will be put together with the support or participation of the educational establishment. The licensing scheme is not contingent or conditional on any involvement by the establishments referred to in section 55 and they will discover that they do not have any right to copy anything if there is a licensing scheme. That takes everything away from the work of the section.

What it really says is that we are going to have this nice rhetoric about the importance of educational establishments but, basically, we will have a group like IMRO which will demand that payment for the right to do something which most reasonable people think is perfectly reasonable. Amendment No. 51 seeks to delete the provision that this section will not apply where a licensing scheme exists.

I second the amendment.

I will give the Senator Ryan the background to this provision. It is the Government's view that rights holders in broadcasting and cable programmes should be in a position, should they choose to do so, to assert their rights in relation to broadcast and cable programmes copied by or on behalf of educational establishments through a licensing scheme, subject to the safeguards set out in section 166. A failure to allow this could result in a significant erosion of the property rights of broadcasters and cable programme rights holders since it would facilitate free copying on a scale whereby their ability to exploit some broadcasting and cable programme normally could be seriously undermined. Senators have accepted the rights of rights holders in many of the comments they made this evening. This would be especially true of material of educational interest, perhaps not specifically made for educational purposes. This category encompasses a considerable share of broadcast and cable programme output.

As Senator Ryan correctly explained, this provision would come into being if a licence scheme comes into place. Presumably that would be done by the Irish Copyright Licensing Association. We are trying to be consistent with the general principle of the rights of rights holders to protect their interest. This is no different from any other area that we have discussed here.

The Senator has mentioned a further proposal later on with regard to disabilities. I look forward to trying to address that with him. However, in this case I ask him not to press this amendment.

Mr. Ryan

The Minister might wish me not to press my amendment but he has not dealt with the issue. It is a very simple question. Why bother to include this section at all while putting in a clear subsection which will effectively negate the entire worth of the section? The Minister has resisted amendments on the basis that the points of the amendments were already contained in the Bill. He received advice from the Attorney General's office, or whoever it was, that it was already contained in the Bill. We now have a reverse situation where we have an entire section which is effectively negated by one of its subsections. What is the point? It would be better to delete section 55 because it means nothing.

Section 55(2) has a delightfully ambiguous phrase – and I wonder about the vigilance of the Attorney General – which says ". . . where the person making the copies knew or ought to have been aware of the existence of . . . ". Can you imagine trying to prove that in court? Can you imagine trying to prove in court that I ought to have been aware of the existence of ‘X' or of some copyright rights? Just tell me about the burden of proof in a situation like that. Tell me what the Attorney General said about how this could be legally enforced. If the Minister believes he has no choice but to include section 55(2) then the correct response would be to delete the entire section because it is meaningless. If he is going to have a section like section 55(2) it ought at least to be enforceable. I do not believe it is because of the words "ought to have been aware of". This is a peculiar wording for something that is supposed to enforce a right and takes the value out of this section.

Let us remember what we are talking about. Section 55(1) states:

. . . a broadcast or a cable programme . . . . . may be made by or on behalf of an educational establishment for the educational purposes of that establishment without infringing the copyright in the broadcast. . .

It must be for the educational purposes of the establishment. In this case the cleaner and the other people I mentioned could not watch it because it says "for the educational purposes of the establishment". This provision is stricter than the previous provision about performances. It takes all of the worth out of it by simply saying but of course if there is a licensing arrangement, which is not conditional on any participation by the schools, then they have to pay up. I do not think that is fair or right and, therefore, I cannot withdraw my amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Mr. Ryan

I move amendment No. 52:

In page 48, to delete lines 37 to 39.

On this occasion more than the heat is making me blush because there was a mistake in the typing of the original draft of my amendment. I ask the House for permission not to move it. It was section 56(3), which is the same as section 55(2), that I wished to delete. I made a mistake.

Amendment, by leave, withdrawn.

Amendment No. 53 has already been discussed with amendment No. 5. I understand that the Minister is accepting this amendment.

I move amendment No. 53:

In page 50, line 19, to delete "private" where it firstly occurs.

I thank the Minister for accepting it.

I second the amendment.

Amendment agreed to.

I move amendment No. 54:

In page 50, to delete all words after "article" where it firstly occurs in line 22 down to and including "periodical" in line 23.

This is an extremely important amendment. I am delighted some young doctors involved in research are in the visitors' gallery listening to it. No one suggests at the moment that anyone is trying to deprive anyone of copyright money from the copying of their articles from journals. However, we have to get practical about this and try to remember how life has been conducted up to now. This Bill suggests that only one article can be copied from each journal. In the whole year you may only get one journal of a series that you get every week or fortnight which has any articles you might want to copy. Perhaps you would just want to copy three articles from one journal. If we bring this Bill through with the section unamended it will mean you will have to apply for copyright for those. I do know that copyright is applied for in scientific articles elsewhere but the practicalities seem to me to be quite amazing. I have friends in the United Kingdom who tell me that they occasionally receive 1 shilling and 6 pence in old money for an article they wrote decades ago. How on earth will we deal with this on a practical level?

I know what the Minister wants to achieve. He does not want people copying wholesale and perhaps selling copies. On the other hand, you are at the same time binding in librarians and researchers who will simply be copying articles out of a weekly journal. Out of 52 journals they may take only two articles and they will be infringing copyright law. Very often you will find that an issue of a journal is devoted to one topic you are interested in and that is all you are interested in for the year.

Another thing is that if it is in a library then the library will have already paid for the journals. They will have made a payment towards the author. As well as that, you may be in a situation where the only way to get a copy of these articles is by going to a library where they have been bound because you may not be able to buy single copies of the journal. For quite a lot of them you have to subscribe on a yearly basis. It is not as if you can go out and get a copy of the issue that interests you. Again, you may be dealing with back issues where it would be absolutely impossible to buy single copies of this journal so that you will not infringe the copyright. This is extraordinarily important in research.

This provision will cause a great deal more problems than it is worth. While I spoke earlier about the need to remove the word "private" before "research"– and I thank the Minister for having done that – I pointed out the great involvement we have in Ireland in research and the added value that brings to so many things here. Therefore, I think we should try to be practical as far as this is concerned.

I have not heard that the Minister has considered this provision favourably before the debate but I would say that it is one that will cause great practical difficulties. It is not my intention that people should copy wholesale issues of journals and sell them to the general public or even to each other. I cannot see how this can be dealt with from a practical point of view, not only from the point of view of those involved in research who are trying to deal with these copies but also from the point of view of librarians who will have control over the material which has been copied. I ask the Minister to accept my amendment.

I am happy to second the amendment. It seems to be in order to achieve what is obviously a concern on the Minister's part and what I would call a sledgehammer approach. The reference to "contained in the same issue of a periodical" is just too extreme. Senator Henry has explained the situation very well and I urge the Minister to accept the amendment.

I support the amendment. The Minister will realise this will be seen as more of a breach than an observance. We are running the risk of bringing the legislation into disrepute. Having listened to the arguments of Senator Henry, we are going too far in this instance and it will be impossible to control the situation. I plead on behalf of students and others because we all know what will happen. The Minister should accept this amendment.

Mr. Ryan

One of the favourite phrases of the Minister for Finance is to talk about himself living in the real world and the clear implication of that is that the rest of us do not. Speaking as one who is intermittently involved in research, I have a sense of unreality about these provisions. What we are trying to do here is prevent people having any potential for commercial return from their copyright. We do not want that to happen. We do not want them to lose out where, under normal circumstances, they would get paid for their copyright. Situations often arise where, if people have to go through this tedium and delay, they will not do it. Nobody will get any money out of it and what one will get is a considerable inhibition to the normal work of research. We are trying to prevent commercial exploitation of other people's work. That means somebody is making money out of it. We are talking about research which, by and large, we understand is material to be published and where people doing the research do not expect to make any commercial gain from it. There is no attempt to take other people's intellectual property, it is simply a question of building on what is already there.

Most researchers who publish assume and, indeed, would be flattered if they found other researchers were using their work to build further. To put an inhibition in the way of the normal way of developing the sum of human knowledge – which is the way researchers either agree or disagree with other people's work – and find from their work whether their previous work is valid, invalid or has limitations that were not previously adverted to, is what research is about. I am referring in particular to the research of the kind to which Senator Henry, and to a limited extent, I would be involved. To insert in legislation provisions which make daft the ordinary operation of that type of research, either difficult or impossible, will serve no purpose other than to make life difficult.

We all know the documents we sign every time we look for a copy of an article from the British lending library and we all observe them reasonably well. We may make a copy for a colleague or we may need more than one copy, or it may well be, as Senator Henry said, that a journal has two pieces that are extremely relevant. What should one do? One will make two applications on two separate days for two separate pieces or get one's colleague to make the second application. Each of us will get one item from the same journal and we will get around the legislation. Nobody will be any better off. It will just make for more bureaucracy and will not achieve a purpose worth defending.

Senators rightly connected the fact that I conceded on the question of private research. It is a relevant point that there is a connection. The Senator rightly referred to the fact that researchers are flattered that others use their work but I would remind him that we are talking about publishers, not researchers. Again, we are talking about the need to limit photocopying exceptions very strictly and, in this instance, the amendment would have the practical effect of allowing journals to be copied by librarians and archivists within the scope of this exception – an activity which could certainly have adverse consequences for the ability of publishers to exploit their assets, particularly in the case of publishers of small circulation and specialist journals.

One could argue that if we do not allow for rewards for these people it could have consequences for the publishing of academic journals. I ask the Senator to think of the consequences for the publishers with a small circulation and a specific specialist journal in which they may be involved. At present one article can be copied. The line must be drawn somewhere. I accept the points made by Senators. In any debate very good arguments can be made on the practical situation and that has been done. I ask Senators to take account of (a) the position of publishers in this case and their rights and (b) the fact that I agree with them on the question of private research. Putting those two things together and recognising the need to take account of the rights of publishers of those types of academic journals, my case is strong in opposing this amendment.

I am taking account of publishers and those involved in small journals. In the real world, if people were photocopying journals rather than buying the wretched thing bound, there would be something wrong with them. I subscribe to small journals and I can swear that if I mislaid or lost a copy I would not try to find a colleague to take a photocopy of his or her journal. I would write to the publishers asking them to forward the journal. If they have not got one what should I do? It has been bound and published, the pages are contiguous during the year, when does one end, when does the other begin, what can I photocopy? This is just silly. Nobody who gets hold of a bound journal will photocopy it. If one must get a photocopy one might find it infuriating, and getting somebody else to photocopy it is as bad. It is not practical.

The Senator could copy one article.

One article can be copied but, as I have explained to the Minister, suppose the only journal in the year is lost and it has all the articles needed by someone – it was on the specific topic of coagulation in which the person was interested – what will he or she do? If the person can get a copy of it, he or she will do so. The person's first instinct would not be to say: "I am going to do the publisher, I am going to start photocopying this, I am going to borrow Jack's". This is silly and it will cause practical trouble to anyone who tries to deal with it, unless we are going on the good old idea that it will not be enforced. That is the only thing that can be behind this; we have decided that this will not be enforced. Unless we have somebody going around the libraries of Ireland and the academic institutions, I do not know how this will be enforced.

There is not a hope in blazes.

Question put: "That the words proposed to be deleted stand."

Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.

Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Lydon, Don.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.


Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Coogan, Fintan.Costello, Joe.Hayes, Tom.

Henry, Mary.Jackman, Mary.McDonagh, Jarlath.O'Dowd, Fergus.Quill, Máirín.Ryan, Brendan.Taylor-Quinn, Madeleine.

Tellers: Tá, Senators T. Fitzgerald and Quill; Níl, Senators Henry and Quinn.
Question declared carried.
Amendment declared lost.
Debate adjourned.
An Cathaoirleach: When is it proposed to sit again?

At 10.30 a.m. tomorrow morning.