Before we commence I remind Senators that they may speak only once on Report Stage except the proposer of an amendment who may reply to the discussion on the amendment. Each amendment must be seconded on Report Stage. Amendment No. 1 is a Government amendment. Amendment No. 2 is related and these amendments may be discussed together.
Copyright and Related Rights Bill, 1999: Report Stage.
A Chathaoirligh, before I take this amendment I would like to be associated with the comments made in the House yesterday about the late Senator Paddy McGowan. Some very well deserved tributes were paid to Paddy whom I knew for many years. His voice and his Donegal accent will be sadly missed in the House and I extend my sympathies to his family. I also wish Pat Gallagher well in his new position as county development officer in Westmeath. I have known him very well over the years.
These amendments are being proposed to ensure that all artistic works, irrespective of their artistic quality, will qualify for copyright protection under the terms of this Bill. I consider that originality, not artistic quality, should be the criterion necessary for an artistic work to obtain copyright protection. Artistic quality is a matter of opinion which can vary from person to person. Therefore, meritorious examples of artistic works may not be given the desired protection of copyright law. Accordingly, I propose these amendments to ensure that all artistic works will be protected in Irish copyright law.
I have no problem with this amendment. However, I am concerned by the lack of amendments. This may be so that particular amendments make sense. Amendments Nos. 1 and 2 are interchanged – this makes sense and I understand why we should do so. This is similar to many other amendments proposed. I cannot remember how many amendments were proposed on Committee Stage. On Committee Stage on 17 June I said:
I welcome the Minister of State and the Bill. When I asked him whether he was willing to take amendments he replied that he would listen carefully. I did not hear him say that he was willing to take amendments. I would love to hear those words.
The Minister of State replied, "I assure Senator Quinn that I am happy to accept amendments if they fit in with the thrust of the Bill." There was an attempt to rush this legislation in late June or early July because the Minister of State was anxious to get it through the House. I think he accepted the strong views expressed that consideration should be given to the Bill rather than rushing it through.
I waited with interest to see what attention would be given to the large number of amendments. Over 50 amendments were put through on Committee Stage. On many occasions the Minister of State said, "I will give consideration to that. I take the point that's being made and we will see about it." We waited to see what amendments would be tabled. We were told that Report Stage would take place at the beginning of October when the House reconvened. The House did not return until yesterday and we did not see the Minister of State's amendments until the day before, that is, 11 October. This is with the rush needed to try to get everything through in June. The House has not been treated with respect in regard to this. The amendments were not trivial. Each amendment was put forward to improve this Bill. This Bill has 194 pages and on Committee Stage it was said this is the second largest Bill initiated in this House. Some Members have committed much time, attention and effort to try to improve this Bill.
The Minister listened very carefully to many of the amendments tabled – I thank him for that – and he promised to give them serious consideration. I am unimpressed that out of all those amendments nothing was changed. The Minister has tabled these two amendments and other Government amendments but clearly no others were worthy of consideration. Some of them would have considerably improved the Bill; others are minor but nevertheless they deserved attention which has not been given. It is understandable amendments Nos. 1 and 2 have been tabled. However they are not unlike amendments which were proposed on Committee Stage and should have been tabled.
The Minister has adopted the wrong strategy. I am interested to see whether he accepts amendments today and, when the Bill goes to the other House, if he will take the same attitude that the Bill is so correct and perfect that no amendments are necessary.
I support these two amendments. I do not have a problem with them. I am surprised that those of us who paid attention to the Bill did not notice this. They are both worthy amendments. I hope the Minister will give consideration to the work of others and not assume that because his team has worked on the Bill, nothing can be improved. Very few things in life cannot be improved and I am disappointed the Minister is convinced his Bill is so perfect it needs no improvement. I hope he pays attention to the amendments tabled. Most of them were discussed on Committee Stage but he did not accept them; perhaps he does not intend to accept amendments on this occasion either.
I do not wish to repeat what Senator Quinn has said with a degree of calm I am not usually able to maintain when involved in political debate. The Minister has waived us all away. My summer has disappeared and I am back where I was at the end of June in a state of frustration. After 20 years in this House I know I am capable of contributing to legislation, identifying limitations and making constructive suggestions, as are my colleagues. I also unfortunately know some Ministers are capable of and willing to respond to that constructive approach and some are not. Unfortunately the Minister is in the second category.
It is impossible to produce a perfect Bill of this length. The Minister asserts that it is only in the smallest detail that this Bill is anything other than perfect. Departments with a reputation for being awkward, such as the Department of Justice, Equality and Law Reform, show a capacity to respond to suggestions. I contributed on the United Nations Convention on the Suppression of Torture Bill and that Department accepted fundamental amendments tabled in the spirit of constructive opposition, which is our job.
Large areas of this Bill are contentious and extraordinarily sloppily drafted. No response was made on Committee Stage and it appears no response is being made on Report Stage. I am disappointed. Obviously I accept these amendments. However it is not my experience that Ministers in this House, particularly when dealing with large and complex legislation, have this assertive belief that they know what is good for us all and that if we only listened to them there would be no problems as they really know what it is about. That is not the way we operate. The underlying assumption of parliamentary democracy is there is no monopoly on wisdom. Unfortunately we are getting close to the assertion there is on this legislation.
The Minister and his officials know this Bill has caused great concern to all the Independent Senators. I have had more contact from constituents on this Bill than on many others. I have no trouble with the amendments proposed, however one could also insert "irrespective of their scientific quality" or other qualities. The issue of quality is important later in the Bill and there is not much we can do about it. We must have copyright for sections from journals, irrespective of their scientific value. It is now reckoned about 1 per cent of scientific articles have any value at all. I support the amendment.
However we are back to where we were last July of trying to rush through this Bill. I am very disappointed because this is an enormous concern, not just to librarians but to all those working in scientific research and in artistic areas. This is a very important Bill but it is very difficult to find a model because recently many changes were made in legislation in the USA and England. Our legislation is as important a template for other countries as is the legislation of other countries and it is unfortunate that we are not trying to make this legislation as good as possible.
I am delighted about the two amendments tabled and that there are changes. In relation to the points made, the Minister has difficulty accepting some amendments due to factors outside our control, such as the Berne convention. Therefore, the Government has not been in a position to accept some amendments.
I accept Senator Ryan's point that there is no monopoly on wisdom. That was retracted by the Minister and his officials by virtue of the debate in this House on previous Stages. I believe the Minister will accept some of the amendments tabled. Many of them were well put and a lot of effort has been made by Opposition Senators. I assure Members there will be no attempt to rush this Bill through the House. However the situation has not changed and we have made commitments. This will not be rushed through but if we could focus the debate to ensure we are not being repetitious we can give the important points the time they deserve and not waste time on matters extraneous to the content of the Bill.
The Chair would agree with the Senator on that.
I welcome the Minister to the House. I accept the Government amendments but I agree with my colleagues. I note and welcome Senator Cox's statement. I hope the Minister will be magnanimous. We need to go further in some sections. As we will discover, anomalous situations still exist in the Bill. I hope and trust the Minister will be reasonable.
I thank Senators for their warm welcome. It is good to be back. Senator Cox has covered some points I wish to make. This is clearly complex, technical legislation. There is no doubt about that. That is quite obvious to everybody and all the Senators accepted that. It involves all sorts of areas which affect Irish life and society, cultural, commercial and academic life. In particular, I value the contributions of those representing the universities here.
However, as Senator Cox stated, this is different from other legislation which has come through this Chamber and I want to make this point at the outset because I think it is wrong to make a direct comparison with other legislation or with the responses of other Ministers because, first, I am curtailed heavily by international and EU legislation. As somebody who has not had to deal with, and especially initiate, legislation in the Seanad before, I would also make the point that initially I produced a draft of the legislation, which was circulated widely both to Members of this House and to the wider community. On foot of that, there were clearly responses made to me and my Department. When people say that they are disappointed we are only on amendments Nos. 1 and 2 and ask why I did not come back with a raft of amendments as other Ministers would do, the answer is simple. We had this lengthy period of consultation on foot of the draft Bill which then, as the Senators will be aware, brought us to this Stage. That point must be made and understood, that when we came to all the various areas, libraries, software, the newspaper industry, educational interests and all the other interests, such as the traditional music sector which was well debated, all of those issues were addressed through a deliberate process of consultation and many of the Senators were involved in that process. I want to make that point at the outset.
I want to make it clear that we have carefully considered the amendments and that there will be changes made, as some Senators here will be aware, on foot of amendments tabled by Members of this House. That is the reality. Obviously my Department would have limited resources and it is difficult to respond as quickly as the Senators would like, but equally we must wait for the Senators' amendments to come through. I want to conduct this debate as efficiently as possible. I assure the Senators that all amendments receive serious consideration but I repeat that there are international obligations which make this legislation somewhat different from other legislation with which the Senators have dealt. I recommend these amendments to the House.
I move amendment No. 3:
In page 24, between lines 36 and 37, to insert the following:
"(d)A work referred to in (a) includes works generated or sustained electronically or with the aid of computer or other technology including laser technology, or any combination thereof.".
I raised this issue with the Minister on Committee Stage. I am sure you would be quick to remind me it is superfluous to say that, a Leas-Chathaoirligh, because I would not be allowed to raise it now if I had not raised it on Committee Stage.
I am genuinely concerned and I have discussed this with a number of people who use modern media in their work. The definition of artistic work in the Bill is a traditional one. The Bill refers to "photographs, paintings, drawings, diagrams, maps, charts plans, engravings, etchings, lithographs, woodcuts, prints or similar works, collages or sculptures (including any cast or model made for the purposes of a sculpture), . . . ". The Minister had an alternative here, which was to leave out all of those and put a form of words to describe them altogether, but by virtue of including a list of types of artistic works, including photographs, paintings and drawings, he immediately invites the question, "What about forms of artistic work which are not included in the list?", and that is what I have endeavoured to do. I know of works which are genuinely artistic, which are not covered other than by a most convoluted use of the English language, on which you would be relying on generous interpretation from the Judiciary, things like the use of computer generated images, and I do not mean computer generated as defined here, which effectively excludes any human creative involvement. Laser technology has been and is used continuously to generate artistic works. Whatever their merit, as the Minister would say, they are definitely the result of the creative use of media which are not contained in the current definition.
One of the reasons I am disappointed is that I would happily have deferred to the technical expertise which the Minister will have, particularly through the parliamentary draftsman's office, on an issue like this, but failing that we either insert an amendment such as this or leave all sorts of media specific, technologically generated artistic work at risk of not being protected by copyright law. This, strangely enough, is an area where not only does the excuse or reason of international obligations not excuse the omission but where international obligations and commitments ought to push the Minister into extending the definition of artistic work. We cannot be in compliance with our international obligations if large segments of genuine artistic work are not covered by the definition because it is too narrow.
I second Senator Ryan's amendment on which I, too, spoke on Committee Stage. There is a huge area here which we are leaving out, the area of computer graphics. Senator Ryan's points about laser technology are important also. Is it not important that we should ensure that this area is covered? It is one of the most fruitful areas of artistic endeavour in Ireland at present. I would certainly be anxious that this legislation, which we hope will last for years, will leave these people with no protection.
I wish to support this amendment also. I spoke at some length on this topic on Committee Stage. It seems to me there is a big danger if we turf computer programmes into the same box as other literary compositions. Senator Ryan's amendment attempts in a sensible way to recognise that there is a radical difference between the two, although there may be a logical reason for not accepting the proposal.
On Committee Stage we spoke about the difference and the difficulty of being able to identify exactly what were literary works and what were computer programmes. It seems to me that Senator Ryan's amendment should overcome that. I would support Senator Ryan's clear objective of trying to improve the Bill, making it clearer and ensuring that the matter does not end up in court later because of the lack of a definition or understanding. There has been such a change in recent years that to identify it in this way is a sensible move.
I, too, support this important amendment. The Bill, when enacted, will be better if we include this because as it stands the Bill does not include materials "sustained electronically", as Senator Ryan's amendment states, and we have left out the Internet, and "computer and other technology including laser technology". This amendment was tabled with the genuine motive of improving the Bill. I look forward to the Minister's views on it.
I obviously share the concerns of the Senators to have this area of artistic work dealt with in the Bill. As far as my technical advice is concerned, we are at one as regards what we want to achieve. The question is whether or not it is necessary. To clarify it, we are dealing with two types of situation, the first of which is where an artistic work is created by a particular artist or artists using electronic or laser equipment directly as a tool to realise his, her or their conceptions.
The second case is where a person sets general parameters within which a computer creates a work. In these cases the Bill already provides for the protection of computer generated works and assigns first ownership of their copyright to the person who made the arrangement for their creation. I don't feel the amendment would add clarity or effectiveness to the Bill. I understand that the Senator has raised an important point about the need to ensure intellectual property law remains effective in protecting artistic expression in general, provided that certain standards or forms of creativity are met. I accept the Senator's point that in future this will involve further clarification of the scope of copyright in relation to technologically generated works and I will keep this question under constant review.
I am not in a position to accept this amendment. First, the definition of artistic work is currently drawn from the Berne Convention which we have talked about the Berne Convention in our past discussions. If we have a major departure from that we will have to revisit international law. Second, there is no reason work made with computer graphics should not be artistic work because computer graphics are only a tool. I am aware of the kind of situation that the Senator has presented. I am sympathetic to and in agreement with the sentiments expressed by the Senators. The question is whether this is necessary and I contend that it is not. The concerns expressed are dealt with in the legislation. For that reason I cannot accept the amendment. However, we need to look at the issue of technologically generated work carefully into the future.
Why am I not surprised? I am always reluctant to get involved in detailed technical arguments about a form of words on amendments with a Minister because, notwithstanding the Minister of State saying that his Department has limited resources, his resources are infinitely larger than those available to any of us on this side. I emphasise "infinitely larger" because one is infinitely larger than zero and our resources are zero. We do it ourselves – there are no other resources. By definition the Minister's resources are infinitely larger than ours. That said, I do not accept that the definition is correct. I do not accept that the Berne Convention necessarily inhibits us from recognising certain realities.
I am thinking of a work that is currently being prepared by someone who happens to be a friend of mine. It is based on light and laser and is meant to illuminate the Lee Tunnel from one side. It is the 1 per cent of the capital cost or whatever it is that a sometimes remarkably enlightened political figure believed should be inserted in all capital programmes. In my view that work will be based on the use of light, technologically generated using laser beams. Any advertiser or anybody making anything will be able to photograph that display, use it commercially and her artistic work will not be protected by copyright under this legislation. That is my belief and the artist in question would share that belief.
It is our duty to reassure artists working in those new media – there will be many more new media and I do not know what they will be – that none of the rights they have under copyright, whether moral, intellectual or integrity rights, can be undermined simply because they used media or combinations of media that legislation does not yet take account of. If one is talking about copyright one must protect intellectual creativity. That is what this is about. I do not believe it's covered. The Minister of State will not accept that so what more can we do?
I move amendment No. 4:
In page 27, between lines 6 and 7, to insert the following:
"‘the Internet' means any network of computers and the technology which links them to which members of the public have access either with or without charge;".
I have two questions on this issue to which I have referred before. I would like the Minister to deal with them separately. First, on Committee Stage he said there was a difficulty about defining the Internet. That is undoubtedly true since it was designed to be undefinable so that it could not be got at, so to speak. It is by definition undefinable. It is an extraordinary precedent to use what is a little bit of jargon – that is what it is. It is the word that came into fashion. Nobody defined this word – it is the abbreviation of a number of other words to create a term that people could use in colloquial conversation to talk to each other about this new concept of computers being networked to each other by increasingly sophisticated software. That is what it was all about.
I remember my first introduction to the Internet around 1991 or 1992 which was a black screen on which you could not even correct a letter – if you wrote the wrong letter you had to start the message all over again. That is only seven years ago and that was the Internet then. It did not involve sound, images or anything else. The Internet now is what we now call it. The Internet of the future will be something else and the word might yet get dropped. Something else entirely could be used. Increasingly, people talk about the web rather than the Internet. The worldwide web is not mentioned here because it could not be yet as it is only a half developed concept.
We need to insert in legislation a way to enable us to adjust to complexity. That is why I chose to suggest a simple concept which is that "the Internet means any network of computers and the technology which links them . . . "– that is probably superfluous because they could not be linked without technology but we will leave it in –". . . to which members of the public have access . . . ". That was precisely to deal with an objection the Minister of State raised on Committee Stage. I had it in before on Committee Stage, that is the distinction between the intranet and the Internet.
The public do not have access to an intranet. The Internet is, as well as we can understand it, that part to which the public have access either with or without charge because large sections of the Internet are not accessible free of charge. The issue of charge cannot be used to define the Internet. Large sections of the Internet are subject to charges of varying levels. It would be mistaken to leave out any definition, even the possibility of a statutory instrument style of definition to adjust to changing technology or changing understanding, to leave it out and simply leave the word in there. It would be better to take the word "Internet" out of this Bill completely than to leave it in undefined. It does no service to the legislative process or to copyright holders to put a term such as "Internet" in there and not attempt to define it. I know it is difficult because, as I have said, using with my own zero resources it took me quite a while to put together those four or five lines.
We are not meeting our responsibilities as legislators or being fair to people working in the Internet business, to put a fundamental piece of legislation like this through the Houses of the Oireachtas with the basic word which describes the area in which they work undefined. It is extraordinary that we have definitions of things where we know exactly what they mean – film, for instance. We have it because it is necessary in law to define our terms. However, we leave the system through which film, video, sound, images and all sorts of other things would be transmitted undefined because the Minister of State says it is hard to define. That is the best he can do. I know it is very hard to define which is why it is very hard to regulate, control and do so much else about it, but that has been true of so many things through history. If we are to legislate properly for e-commerce and the other areas which are vital to this country's future we will not do it by copping out on basic definitions.
I second the amendment. I cannot improve on the very strong case made by Senator Ryan. The word "Internet" is such a new word, yet I know the Minister does not intend to return here in two or three years with further amendments or adjustments. I am convinced that the term "Internet" will not be used in the next five to 15 years. This is such a fast moving medium it is highly unlikely that it would be accepted. Senator Ryan said he is not sure it is being used nowadays. The worldwide web is being used, but probably not for long. The wording of the amendment is correct: " 'the Internet' means any network of computers and the technology which links them to which members of the public have access either with or without charge;". It may well be that there is a better wording and, if so, the skilled draftspeople, to whom the Minister has access, will produce it.
I am convinced that when this Bill goes through the other House and is passed – as I am sure will happen soon – the word "Internet" will not be used. There will be an improved word which will ensure that when the Bill is enacted it will last a long time. If that is to happen something must change, rather than using a word that is unlikely to be used in a short time. A better solution should be found.
I thank the Senators for their efforts to define the word "Internet" and I see the validity of their points. The advice of the Attorney General's office is that to define this term could restrict its meaning and it is better left undefined. I can see the merit of such advice in that ultimately we are trying to protect not only copyright right holder but also consumers. The advice is very clear – that a definition of the Internet is not necessary because this term is in common usage and is reasonably well understood. The arguments made by Senator Quinn about how things may change support my position. In that context, the term is clearly understood, the Attorney General is very firm on it and I accept his advice. The Senator said that there may perhaps be flaws in the definition but the problem does not only relate to this Bill. Getting definitions and all types of legislation can cause many problems. The Attorney General's advice is clear and I am, unfortunately, unable to accept the amendment for that reason.
If I was looking for advice on the Internet and its meaning, the last place I would go would be the Attorney General's office. Until some of the recent upsets, it operated on a pre-computer system and, on a few occasions, it could not find records because it was not computerised. It is not the place to start. The Attorney General's office was being pushed into areas of definition – as the office is not here to defend itself I am reluctant to push too far – whereby people did not require a legal but a technological and technical understanding.
The phrase is in common use, etc. We have the words "photograph", "film" and "sound recording" defined here. Photographs have been in existence for the past 100 years and we still need a legal definition. The same can be said about films. However, we do not need a definition for the Internet. I find the reluctance of the Minister and the Attorney General's office in dealing with this more a reflection of not facing the nature of the present world than anything to do with law. It is a very different world in which change takes place at a pace that the normal processes of law-making cannot handle. The less helpful way is to avoid a definition because it may well become dated. The problem is that things are changing too fast for conventional ways of dealing with the law to catch up with it. That is not an excuse for not giving a proper legal definition of the term. It is a question about procedures and whether something like the Internet ought to be regulated from time to time by definitions that are generated by ministerial order, etc. If one was to pursue that logic to its conclusion in the whole area of information technology there would not be definitions.
The software and hardware I used seven years ago are out of date, yet we have definitions of computer media – I recall going through this on another Bill – computer programmes and even hacking, written into our legislation. What was possible in terms of hacking years ago is different from what is possible now and the same can be said about what is being done, but it has to be dealt with on the basis of law and not on a vague aspiration. If law-making is to remain the property of the Houses of the Oireachtas and not of the Judiciary – which is what will happen in the absence of a definition – we will use case law paid for either by the taxpayer or by the cus tomers of various corporations in a succession of cases through our courts and the European courts because we fail to deal with the complexity of the issue in any kind of a legislative fashion.
Burke, Paddy.Caffrey, Ernie.Coghlan, Paul.Connor, John.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Hayes, Tom.Henry, Mary.
Jackman, Mary.McDonagh, Jarlath.Manning, Maurice.O'Dowd, Fergus.O'Meara, Kathleen.O'Toole, Joe.Quinn, Feargal.Ridge, Thérèse.Ryan, Brendan.Taylor-Quinn, Madeleine.
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam.Fitzgerald, Tom.Fitzpatrick, Dermot.
Gibbons, Jim.Glynn, Camillus.Keogh, Helen.Kett, Tony.Kiely, Daniel.Lanigan, Mick.Lydon, Don.Mooney, Paschal.Moylan, Pat.O'Brien, Francis.Ó Murchú, Labhrás.Ormonde, Ann.Quill, Máirín.
Amendment No. 5 in the name of Senator Ryan. Amendments Nos. 27, 29 and 31 are related and amendments Nos. 26, 28, 30, 53, 55, 56, 92, 93 and 99 are cognate and are related to amendment No. 5. Therefore, amendments Nos. 5, 26, 27, 28, 29, 30, 31, 53, 55, 56, 92, 93 and 99 may be taken together by agreement.
I move amendment No. 5:
In page 28, between lines 8 and 9, to insert the following:
"‘public research' means research the complete results of which are intended to be published;".
We had a long debate on this issue on Committee Stage and I know Senator Henry has been in receipt of vigorous representation in respect of it. The view is widespread in the research community that if this wording—
I intend to respond positively on this issue.
In other words, the Minister of State is saying that if I speak quickly he will be—
No, I just wish to save the Senator the trouble of making a long speech.
The difficulty is that I do not know how positive the Minister of State intends to be.
I accept that.
I am glad to hear that from the Minister of State because—
He is going to accept the amendment.
We will see which amendments he intends to accept in a moment. Quite a number of them are being discussed together.
There is a mixture of amendments but I will be accepting some of those in the names of Senators Henry and Quinn.
In that event I will be brief because I can say what I want to say at the end. Given that 12 amendments are being taken together, will the Leas-Chathaoirleach indicate the number of Senators who are entitled to reply to the debate?
That depends on which ones the Minister proposes to accept.
Only the Senator who proposes the first amendment is entitled to reply.
I am the only one who can reply.
I am very disappointed by that.
I am surprised at that, given that one does not have to accept these groupings and that the amendments are taken together by agreement. It is of no concern to me but some of my colleagues might wish to take a different view about agreeing to the groupings if I am the only Member entitled to reply on the issue.
If Members do not agree to the groupings, the amendments can be taken individually.
We are not quite sure which ones are being taken and they have been tabled in the names of different Members.
We do not know which ones are to be accepted.
That is right, we do not know which ones will be accepted.
May I propose we take the amendments separately? We agree not to delay the debate on this issue but Members who would not otherwise have the opportunity to reply will be able to do so. The problem arises because the Minister of State has let it be known that he appears to be receptive and positive to the amendments, but it may be that he will not respond positively in respect of the entire group.
I propose that we take them in the manner in which I indicated earlier but that the Chair will give latitude for a reply from Senators on each of them. Is that agreed? Agreed.
That is fine. I did not want to appear to be monopolising the debate on this matter because I might end up on the Independent benches in the future.
Fine. I call the Senator to speak on amendment No. 5.
I look forward to what the Minister of State has to say on this issue. However, the point is that there is a genuine concern among members of the research community. Those involved in that sphere are not merely detached academics; the research community is now a major part of our strategy to sustain our position as a forward looking, economically successful country and it is important that we have a large element of research being undertaken in the public and private sectors. While I appreciate the copyright restrictions, we must be careful not to insert into copyright law requirements and restrictions which are not part of the traditional understanding of how information is disseminated within the research community.
I do not believe that the amendments tabled in my name are perfect. However, it is my opinion that they turn the Minister of State's logic upside down. I believe that the research that needs to be protected from excessive copyright restriction is that which is intended for publication and circulation among members of the research community. There is other research carried out by multinationals which, by definition, will not be published because such research is done for commercial gain. Where a multinationals' research is unsuccessful, they may not wish that information to become known and where it is successful, they will at best publish it in the form of patent law. Multinationals will only publish as much information as is necessary and such information will not be made "public" in any understood sense of the word. I refer here to two entirely different kinds of research and there is also an overlap which occurs in the area of medicine, in particular, where research is done by medical practitioners using the products of multinationals. The normal ethical requirement for any such research is that the results must be published. It has been my understanding that one cannot do research in medicine which cannot be made available to the entire medical community. Much of this is to the benefit of multinationals and I suspect that if they did not have a good idea of the outcome they would not encourage the research. This is a difficult area. The concept of private research – as inserted in the Bill by the Minister of State with no intention to be awkward – is distinct from private study, where the phrase is correct. I do not understand how an individual could engage in anything other than private study but I accept the term in that case.
My amendment will insert a definition of public research as research, the complete results of which are intended to be published. My intention is that the term would replace the term "private research" wherever it arises in the Bill. This would leave sufficient room for the normal practices of the research community to continue without being overburdened. There would be problems, for instance, for the normal research community in getting access to journal articles which would have to be copied and researchers would, therefore, be restricted considerably if the concept of private research was to be interpreted in a narrow fashion. My amendment suggests that we define something called "public research" which is research, the complete results of which would be published and would be accessible to the public. Any other kind of research which would not be public would be research where there was some secrecy about the results and commercial intent behind it and those engaged in it should not get other people's results on the cheap.
I second Senator Ryan's amendment. On Committee Stage we went through in great detail our concerns about the insertion of the word "private" before "research". Such research could be interpreted as being only for the individual person's benefit whereas we all know about team work and work which may not even be done on the same site but where the words "private research" could apply and cause trouble. One of the most important areas in the improvement of the country's economic situation has been the involvement of so many people in research and technology in our universities, hospitals and elsewhere. Important repercussions could arise if the term were interpreted in a very narrow way. The Minister of State is attempting to avoid people being exploited by commercial organisations but I appeal to him to consider that the narrow interpretation might cause far more damage. I hope he will look favourably on the amendments I have submitted, which propose the deletion of the word "private". I quite understand "private study" but the term "private research" could cause many problems.
I am happy to support this amendment. Senator Henry has referred to the fact that her objective is to avoid a narrow interpretation. It may well be that the Minister of State will do exactly what the Senator aims to achieve, in a different way. I would be quite happy to accept that.
One of the success stories of the IDA and Enterprise Ireland has been the encouragement of foreign companies to conduct research and development in Ireland, rather than simply manufacturing here. That has been quite attractive. We want to ensure that we continue to attract such companies so that we do not simply become hewers of wood and drawers of water but do the more skilled jobs of which we have proved ourselves capable. We seek to avoid a very narrow interpretation and these amendments achieve that. The Minister of State, following advice, may have a more satisfactory way of doing that. I am happy to support these amendments.
The merit of this amendment is clear. I agree with the principle of avoiding a narrow interpretation. Would it have been better to define public research as research, the results of which, or any part thereof, are intended to be published? I would welcome the Minister of State's comments.
I thank the Senators for their comments and, in order to avoid confusion, I will say which amendments I accept. I accept amendments Nos. 26, 28, 30, 53, 55, 56, 92, 93 and 99, in the names of Senators Henry and Quinn. In my view, this will fully address the matter raised in amendments Nos. 5, 27, 29 and 31 which, in consequence, I will not be accepting.
The result of the amendments I am accepting would be to remove the requirement that in order to qualify for exceptions to copyright which are designed to apply to private research, the research should be specified as private. On Committee Stage debate in this House, strong views were expressed by a number of Senators to the effect that the specific restriction of these exceptions in favour of research related copying to private research should undesirably inhibit free copying in certain academic contexts where the private nature of the activity was in doubt. One example cited, which has been referred to by Senators, was of research assisted by a grant from a commercial organisation; in other words, the in-house copying of academic dissertations by universities.
The word "private" was included in the Bill as currently drafted, essentially to exclude from the scope of the exceptions copying of works done in such context as commercial research conducted by or under commission from commercial, quasi-commercial or administrative entities, that is, research falling beyond the purely private and/or academic spheres. It was not intended, for example, to exclude copying in the context of research which was merely grant-assisted in a general sense by either private or public sector and I do not believe this would have been its effect.
However, we have examined all the issues since we last met and I have formed the view that in practice the highly restrictive character of the exceptions in question will mean that little disadvantage is likely to be suffered by rights holders if, as suggested by the Senators, the word "private" were to be deleted from the relevant sections. On the other hand, I must respect the views of Senators, whose familiarity with the circumstances of academic research is very important, to the effect that the retention of the specific qualification "private" in the section would seriously undermine the legitimate purpose of the exception in question in helping to foster genuinely non-commercial research in all fields.
I am happy to accept the amendments I have specified and I thank, not only Senators Henry and Quinn, but also Senator Ryan who helped to throw light on the matter and prepare the way for this improvement in the Bill. I will keep the effect of these changes under close review with a view to prompt remedial action should evidence be brought to my attention of real significance to the interest of copyright holders resulting from this change. It is clear that the amendments proposed by Senator Henry and Senator Quinn are accepted but those proposed by Senator Ryan are, consequently, not being accepted.
The Minister of State is probably right. My only reason for inserting the question of public research was to avoid a situation where there would be commercial gain. The Minister of State's point is that in the vast majority of cases that can be dealt with by the legislation. I am a little concerned that research conducted exclus ively in the commercial sector would still have the benefit of these exceptions. That is the only concern I would have but I am not going to argue with him. It is a sensible response to the issues raised.
I thank the Minister for accepting the amendments. This is a practical consideration and I am sure he can keep an eye on the legislation. In the event of exploitation I can understand he would have to react. Having worked in research for a very long time I do not think there will be exploitation. All we needed was a narrow ruling on the word "private" and many academic departments would have been thrown into chaos. This research is not just important, as my fellow Senators have stressed, for those working within the departments but when the practical effects go out into the wider commercial sphere.
In line with a previous ruling by the Chair anyone who wishes to contribute—
I only wish to say the Minister of State has recognised the objective. It is a perfect solution to it and should avoid problems for the Bill and the Act later on. I appreciate his reaction.
I move amendment No. 6:
In page 33, between lines 6 and 7, to insert the following:
"(d)by sending it by such other method (including electronic method) as the Minister may decide,".
I am not deliberately reintroducing most of the amendments but I raise this matter because I think there are issues to address. In the period when this Bill was in gestation and now that it has been published and is being debated, the question of e-commerce, electronic signatures, encryption and so on has become as important issue as the issue discussed previously. How do we maintain a competitive position? Can I make an entirely incorrect aside and say that how we deal with issues such as e-commerce is far more significant to competitiveness than indices of wage increases? Many good economists are throwing much of the talk about national competitiveness out the window at this stage because it is a dubious concept.
In terms of law, technology and structures if we do not stay ahead of the field in electronic commerce it will be a missed opportunity. It does not necessarily mean the end of life as we know it but it will definitely be a missed opportunity. It seems inconsistent, therefore, when we have legislation which the Minister of State says is intended to be forward-looking that we do not make provision for the possibility that notices that are to be served on people who are alleged to have breached copyright cannot be sent by whatever form of electronic means will be available. If we believe we will have electronic commerce with the capacity for electronic signatures of binding contracts, there is no reason to assume we cannot develop an equally secure electronic means of serving notices. There is an idea that we will go on forever with the garda going from door to door stuffing summonses into letter-boxes as our concept of how to serve notices when it is conceivable that in 20 years' time there will not be postal deliveries because people will have electronic mail boxes through which virtually everything will come. I do not know what will happen but it seems reasonable to put in the legislation at least the possibility of new methods of service of documents and notices. That is what my amendment is about. It is about sending notices by "such other method (including electronic method) as the Minister may decide". This is simply to facilitate the Minister and the State in the future.
I second the amendment and in doing so I recognise what Senator Ryan has said. This is not the ideal. It was only when I went through section 14 that I discovered it will look so out of date not only in 1999 but next year where it refers to "delivering it to the person . . . leaving it at the address . . . by sending it by post or in a prepaid letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address . . . ". It is so out of date because for the vast majority of us, certainly the vast majority of businesses – whatever about individuals – messages no longer come that way. It would be ideal not to have that big section. I am sure the Minister of State is getting advice somewhere to the effect that this is the traditional way we have always done it.
We debated this on Committee Stage because, I think, the day before we had a Bill on truancy. On that Bill there was a discussion about how and whether it had to be a prepaid letter, a registered letter and so on. There is another amendment about that issue here. It just seems so out of date and nowadays there must be an easier way. Senator Ryan has come up with the best approach in his amendment –"by sending it by such other method (including electronic method) as the Minister may decide". It is a perfect amendment and is the ideal way to achieve this because it is necessary that there is confirmation that the message has been received. How we can achieve that I do not know, but it seems to me that the traditional way of doing it, the way the 1840 penny post established, will not be around in that same manner in a year or two.
On this issue, has the Minister noticed the Eircom advertisement on the billboards around the country and in some of the periodicals which says postmen used only deliver letters? This supports the point made by Senator Ryan. We must acknowledge the advent of e-mail and whatever else there may be in the future. Maybe there is some way of doing it. I accept the Minister of State has heard this before, but when I saw that particular advertisement it made me think that the letter, whether registered or prepaid, will not address the issue. If one sends a letter by e-mail and it is not received by the recipient, it is sent back so that one knows that person has not received the e-mail and one has confirmation that it has not been received.
I am delighted to hear what Senator Cox had to say. This legislation has to last. We could have included by telegram a couple of years ago but now there are no telegrams, no post on Saturdays and we do not have twice a day deliveries any more. Who can say for how long more the post will be delivered. It may be that we will have to rely far more on e-mail. My friends in microelectronics were inclined to chuckle a lot when I discussed this with them and they asked if I had not heard that one can send things legally by e-mail. I am sure the Minister of State would want something in the legislation which it was perfectly obvious was the method by which most people would carry on communication within a few years. It is as if to say "Although I have an e-mail address, you had better send me an open postcard if you want a response". This is the technology of the age now, not to mention looking forward a few years, when the technology described in the Bill may not be available to everybody.
This amendment speaks for itself. Without it the measure would be outdated before its enactment. I welcome what Senator Cox has said, particularly her explanation of the fail-safe involved in the sending of e-mails. For all the reasons outlined it is prudent that this amendment be accepted. I support it.
This is an attempt to be helpful to the Minister of State and my colleague. I support the points made by fellow Senators that we need to be forward-looking in relation to such things as the service of notices and not be caught up in past practices. I wonder whether it is appropriate so that one serves in a modern way under the Copyright Act but one does not under other Acts. Is the way to address this to publish a Bill which would deal with the updating of the method of serving notices? It seems possible and, presumably, it would be a matter for the Department of Justice, Equality and Law Reform but a small Bill could be introduced as these procedures develop which would say that the following methods of serving noticesvia electronic processes are to be added or substituted for others. I have a slight worry about having a small island of modernity in a sea of antiquity and it might be better to deal with the sea.
The Senator has made an eloquent point. It would be best to deal with these procedures of service of instruments in a broader context. I am interested in modernising this legislation to ensure that the approach which has been outlined by many Senators is accommodated in the Bill. We have contacted the Department of Justice, Equality and Law Reform and it confirmed that this matter falls within the general context of the service of instruments. However, I am prepared to accept the amendment, which includes the words "as the Minister may decide" and, hopefully, that will give me flexibility.
The Minister of State is flexible. Senator Henry just said that things will go much better now. That might not be fair but it is probably true. I thank the Minister of State.
I move amendment No. 7:
In page 34, line 18, after "another" to insert "pre-existing".
Time is of the essence in the amendment. I am trying to improve the Bill. If the Minister of State writes a book and I say he has copied something I have written, I will sue him. Similarly, if I write a book, the Minister of State will sue me if he has already written it. The only issue is who wrote the book first. To make sure that such disputes do not take place in future, it seems simple to just insert the word "pre-existing" in order to establish who holds the copyright. The Minister of State stated on Committee Stage:
We both want precision and clarity but as of now I believe the wording is strong enough. However, I will be happy to examine it between now and Report Stage.
Has the Minister of State examined it? It would solve legal difficulties and save a great deal of money. The Bill would be more acceptable because it would overcome that problem. Inserting the word "pre-existing" avoids all the furore that could surround to whom the copyright belongs.
I second the amendment. In case the Minister of State is thinking about writing a book, I warn him that Senator Quinn's book is entitledCrowning the Customer. It is important that we make it explicit that what we mean is a pre-existing work.
My book is calledKeeping it in the Dark.
I hope there is no relation betweenKeeping it in the Dark and Crowning the Customer. It is not necessary to insert the word “pre-existing” as it would be superfluous and I know the Senator would not want to include anything superfluous in the Bill. The Attorney General's advice is that the existence of another work in terms of this subsection necessarily implies that the other work in question pre-exists. I recall that we debated this on Committee Stage. It is a question of whether the word is superfluous. If I were to accept the amendment, the word “pre-existing” would have to be inserted wherever the word “another” is present in the legislation. It is a matter of English usage and I agree with the Attorney General. “Another work” clearly implies that the other work in question pre-exists. The word “another” accommodates the Senator's concerns. I will not accept the amendment on the basis that it is superfluous and unnecessary and the Senator's concerns have already been accommodated.
I accept the Minister of State's advice. My intent was to improve the section to ensure that legal problems did not arise in future. I do not want to add superfluous words. The case I made was logical but the Attorney General's advice is that it is not necessary. We will look back in later years to see whether that is correct.
The printed list should have stated that amendment No. 8 was tabled by the Minister of State.
The amendment proposes to redraft section 20 which, as currently drafted, appears to cause confusion as to what this provision is meant to cover and I recall concerns about it on Committee Stage. The purpose of the section is to clarity the extent of copyright protection in cable programmes. The protection given is for cable programmes originating from the cable programme service solely. For example, if a cable programme included in a cable programme service merely involved the reception and immediate retransmission of a broadcast without any alterations to the contents, it is not the intention to protect it by copyright, although the broadcast itself will, of course, be protected. I propose completely new wording for the section, which has been drafted in consultation with the Attorney General's office and which I consider explains more clearly the scope of the section.
I agree with the Minister of State's proposal, but two issues arise. I have tabled an amendment on a provision later in the Bill which allows a cable company to alter a programme to enable it to delete, among other things, items which offend public morality. How does that fit with this amendment because the company is allowed to alter a programme? The original amendment stated "shall. . . unless that transmission alters the content of the broadcaster of the materials".
The second question relates to the practice whereby, for example, the cable service in Cork, which is perhaps the worst in Ireland, among the many other off things it does, refuses to broadcast in stereo. Therefore, it alters every programme by converting the sound from stereo to mono. One may argue about altering the content but it dilutes the content. The difference in quality between stereo and mono on television is enormous because of the way in which sound was transmitted previously. I am worried that, for no malicious or other reason, the wording may give rights to copyright claims by people who alter material for reasons which are legal or otherwise.
On the other amendments, I would be happy to come back and allow the Senator's question of moral rights. We will be dealing with that later on. This section will only apply where a substantive alteration in the programme occurs. That essentially is the net point here and the language is much clearer than that which we had already. I know there were concerns about this but I would be happy to deal with those questions raised by the Senator in our subsequent amendments or the ones the Senator has.
A Chathaoirligh, would this be a suitable juncture for the Acting Leader to call a sos until 2 o'clock?
The Order of Business did not make provision for a sos but if the House agrees and the Minister agrees that is fine.
I move: "That the sitting be suspended from 1.01 p.m. until 2.00 p.m."