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

I move amendment No. 9:

In page 35, line 21, after "director" to insert "and the author of the screenplay of the film and the author of the dialogue of the film and the author of music specifically composed for use in the film".

I admit my heart is not in amendment No. 9. I remember when I tabled the amendment on Committee Stage I even said I did not expect the Minister to accept it. However, I tabled the amendment because there is an anomaly, and I hope the Minister will say he has found a solution to it. My heart is not in the wording I have used. Let me attempt to cover the point I wish to make.

There is inconsistency, and I refer to section 25(1) and section 22(2). Section 22(2) states: "A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person." The implication in that section seems clear in that the authorship of a film belongs to both the producer and the principal director only. If they are one and the same person, then we are talking about sole ownership. That seems quite clear but at first I was a little surprised at it. I then assumed it meant that copyright of the film itself is one thing and copyright of the screenplay is something else. Specially composed music would be a separate matter altogether.

Section 25(1) states: "the copyright of the film shall. . . . " and it talks about the principal director of the film, the author of the screenplay, the author of the dialogue of the film and the author of music specifically composed for use in the film. I have a problem in finding that one section seems to say one thing and another something else. I accept that my amendment, which states: "after "director" to insert "and the author of the screenplay of the film and the author of the dialogue of the film and the author of music specially composed for use in the film", does not seem very logical. That is what is being done in section 25 but not in section 22. I hope the Minister has found a solution to what I regard as a difficulty.

I became involved in a film, or I know of a young man who made a film – I referred to this earlier last year –"How to Cheat in the Leaving Cert". We have all mentioned the names of things in which we were involved, and Senator Henry did not know that I acted in a film. I discovered all the things which that young man who put together this film had to do. He came into the House and told me what he planned to do. I then realised the difficulties there are and that it is hard to pinpoint authorship in one area and copyright in another. In this case, we seem to be doing two different things. I will not press this amendment other than to ask the Minister for an explanation or has he found a solution to what I regard as an anomaly between sections 22 and 25?

I second the amendment. I have never been involved in a film but Meryl Streep had better look out because I could become interested in that area. Senator Quinn has ably pointed out the difference in the nomenclature in the two areas. I am sure the Minister will be able to explain why this is so.

I thank the Senators for raising this matter and I recall the discussions we had on the last occasion. As Senator Quinn pointed out, this is about a work of joint authorship. The net point we made the last time was that it is most unlikely that all the persons named in the amended version of the subsection would ever, so to speak, be one and the same. That was the position from which we were coming and that is why there is a problem accepting the amendment.

I appreciate the Senator has a point in that we are talking about the rights of the authors of screenplay. Screenplay is protected as a work. We are getting into the scenario of the knitting patterns and the jumper and the relationship and status of both. We are getting into an area in which the Senator clearly has an experience. In relation to film making, I am like Senator Henry in that I have not quite reached that level yet, but there is always hope and the prospect of many things. Interests and interested parties dispose of their interests by contract in some of these situations.

I have nothing further to add other than what I said the last time, that it would be unlikely that all the persons named in the amendment would be one and the same person. We have a difficulty with it but I accept the Senator has raised legitimate issues that may be dealt with in another setting. We cannot do so here, given the clear definitions of author already included. If we interfered with this there would be horrendous consequences.

I thank the Minister of State. I will not press this amendment, but I put it down because I raised this issue on Committee Stage and I hoped that in the three months since the Minister of State would have come up with a solution to put my mind at rest. I accept the point that I have not come up with a solution either. While it has not happened in the past three months, there is a possibility that a solution may be found before the Bill is enacted and I urge the Minister of State to look at this, or else we will have a less than perfect Bill. I know that the Minister of State and other Members would not like the Bill to leave the House unless it is perfect and likely to last.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 35, to delete lines 41 to 45.

As it stands, section 23 provides for an anomalous and undesirable situation, which we have already agreed. I am interested in hearing the Minister of State's thoughts on this matter, as I am finding it difficult to square the circle. This section is not in the United Kingdom Act, which is the model for much of this Bill, and it places print journalists in a more favourable position than their broadcasting colleagues. It is fair to say that the section treats both journalists and newspapers unfairly.

The NUJ is very concerned about this. I confess that I did not have any representations from that body previously and I was led to believe that it agreed with the National Newspapers of Ireland, but clearly it is not. Although I cannot discuss section 23, the NUJ says it denies first ownership of copyright to the journalist who is an employee.

Regarding the amendment, the NUJ is seeking deletion of this subsection, as well as the NNI, as it only allows the author in the course of employment by the proprietor of a newspaper or periodical to make use of the article for any purposes other than making it available to newspapers. Its objection is that the subsection is too restrictive and it notes that the NNI has also objected, as we are all too well aware. However, the NNI is objecting for the opposite reason.

The NUJ also makes the point that copyright in all European Union states, apart from the UK, cannot be held by a legal entity and must be held by a person and that the only exception to this is where companies are formed by creators specifically to collect and distribute royalties as a matter of convenience to the original creators. The NUJ adds that it is worth noting that in the EU, again apart from Ireland and the UK, an author cannot waive the personal rights of attribution and integrity, which is consistent with the logic that an individual cannot sign away basic human rights. The NUJ also refers to what is known as the "Anglo-Saxon anomaly", whereby throughout EU states copyright legislation forbids the holding of copyright by a corporate entity, treating the creator and his or her intellectual property as inseparable.

On the other hand, this section singles out newspapers unfairly and treats them differently from other categories, employers and, in particular, other media. Television and media stations own copyright in the works of their employees outright under this section. Why should the same not be the case for newspapers? They feel it is important that our indigenous newspapers should not be disadvantaged in competing with imported newspapers, which is a point we can all sympathise with. The Minister of State will be aware that British newspapers account for approximately 30 per cent of newspaper sales in this country. He will also be aware that the UK copyright Act gives the same rights to British newspapers as other British media and treats all employers the same in so far as they own, without reservation, the copyright to the works of their employees.

It is not my desire to favour one media sector above another, but it is important that this legislation strikes the proper balance between competing media sectors. For this reason, and given that both sides are in agreement, I am happy to move this amendment, which seeks the deletion of section 23(2). That said, I am interested in how the Minister of State is going to square the circle, as even with this subsection being deleted there will still be an inherently anomalous situation in the Bill. I do not propose that it will be corrected fully today, but I hope the Minister of State will return to the issue before the Bill goes to the Dáil.

I second the amendment. I have a real problem with this subsection and I do not understand why only the print media are being singled out. The subsection states:

Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose, other than for the purpose of making available that work to newspapers or periodicals, without infringing the copyright of the work.

I assume this has been brought about because the NUJ has put a case here and argued strongly for it. However, it has only made a case for just one section of its members. It has not said it is working on behalf of the journalists who work for television and radio. I do not understand that; it does not seem right.

If we passed a law which said that everybody had to pay tax except Feargal Quinn, though I like the thought of it there would be an outcry. People would say it could not be done and it would not be regarded as fair. Yet here we are passing a law that applies to one but not another. It is difficult to accept because there is so much blurring now between different media. There are so many changes taking place that this will be very hard to define and I fear it will not be good law.

The other reason is one mentioned by Senator Coghlan. We should not discriminate against Irish businesses. I am in business and I find laws are passed which only apply to indigenous companies. The marketplace is highly competitive. Businesses cannot succeed if they enter that market place with their hands tied behind their backs if some laws do not apply to their competitors because the competitor operates out of another company. Yet those businesses must compete in the same marketplace.

This section means the law will only apply to Irish newspapers and periodicals and will not apply to television or radio or to British newspapers and periodicals. As Senator Coghlan said, this marketplace is fraught with competition and indigenous companies are having some difficulty holding their own, though they are doing a good job. To tell those companies that a new law will only apply to them is bad law. It is wrong and unenforceable in the long term as a way around it will be found. It is also unfair to journalists who work in media other than newspapers.

I support the amendment. This is bad law and is not sustainable. It will not last because of the changes in technology which mean there will no longer be easily defined demarcations between different types of media. The solution is to delete this section and find another way to satisfy those who asked for its inclusion.

I do not support this amendment. Rather than asking why print journalists should have rights which other journalists do not enjoy, the corollary would be to extend those rights to other journalists. I am sure the Minister of State and his officials are aware of recent court cases in the US, the UK and on the Continent which upheld the Anglo-Saxon anomaly. It is important that we recognise that these cases took place and I would like to quote a news release from the Authors' Licensing and Collecting Society, the British rights management society for all writers. It is important that I read this document into the record as we must acknowledge that this occurred in a different jurisdiction. I received this news release from Alex Kempner, dated London, 1 October 1999. The document states:

British writers hope to benefit from landmark US lawsuit on electronic rights:

British writers' organisations are this week welcoming a major victory for freelance writers in the US courts, the implications of which seem certain to affect writers and publishers on this side of the Atlantic.

A federal appeals court has ruled in favour of US freelance writers in a landmark lawsuit that protects their intellectual property and confirms the standard principles of US copyright law for electronic publishing. The three-judge panel decided on 24 September that the New York Times, Lexis-Nexis, and other publishers cannot re-sell freelance newspaper and magazine articles by means of electronic databases unless they have the authors' expressed permission. The ruling inTasini vs The New York Times is expected to send shock waves throughout the US media industry, which now faces the direct financial threat of widespread copyright infringement actions.

The Chief Executive of the Authors' Licensing & Collecting Society, Dafydd Wyn Phillips, hailed the judgment as a great opportunity for authors: "This confirms ALCS's view that electronic rights should be licensed separately and paid for in addition to print rights. The Society is already operating on this basis."

Bernie Corbett, freelance organiser of the British National Union of Journalists, said: "This is a milestone judgment. It will give journalists, authors and other creators far greater powers in their efforts to share in the benefits when their work is republished electronically. We want an end to bullying by publishers seeking all rights for a single low fee. Many of the problems caused by the American publishers are also experienced in Britain and Ireland.

Members of the NUJ will be meeting Jonathan Tasini in a few days' time to co-ordinate our campaigning and consider further legal action. If publishers cannot see that they must change their ways, then the NUJ is ready to start legal action this side of the Atlantic. In the era of digital publishing we need global standards. We are sure British and Irish judges will follow the strong lead given by the US court."

There were other agreements on journalists' rights reached forThe Guardian and court victories for journalists' groups in the Netherlands and France. However, I do not have details of these cases. These fresh cases must be taken into account when we look at this issue. This means that Irish publishers would not be on a different playing field to those in the UK, and that is important. I do not know if the Minister of State can take this into consideration at this point but I am sure he and his Department knew about these cases. These judgments are important because it is then not the case that the Minister of State's section is going out on its own.

We should not withdraw this section from the Bill. It is only fair that if someone writes an article while in the employment of a newspaper they should be allowed to reproduce the article in a book, such as a collection of articles, or whatever. Withdrawing this section would remove one of the basic rights available to people regarding intellectual property, even when they are creating work in the paid employment of a newspaper.

I presume the declaration of interest I made when this Bill was last discussed carries through and that people understand that I am a member of the board of Independent Newspapers. I am also a writer and have a particular interest in this area. I am in the happy position of being a freelance writer and not writing in the employment of newspapers. I retain copyright. If the newspapers reprint my material, even in another Independent newspaper in South Africa, Britain or wherever, I receive a fee. That is entirely proper. If there is further exploitation by electronic media or other means, then the writer is entitled, at least, to a share.

There are two difficulties with this issue. One of the difficulties is the convergence of media which has been alluded to, and the extent to which the print media is merging into the electronic media and so on. This makes these issues difficult to pursue. One normally thinks of an employer's intellectual property rights as those to material created while a writer was employed by them or to work made possible by resources provided by the employer. I have much sympathy for the point made by Senator Ryan that these rights should not be internal and should not go on forever. People should have the right to reproduce material in a book and so on.

However, I am conscious of the effect of this issue on news. News is a commodity which has a short shelf life – it has little value if superseded by someone else. The Minister of State should consider a scenario in which an Irish newspaper invests a lot of money in sending someone to cover the Olympic Games in Sydney. The newspaper is waiting for the copy to come back and believes it has rights to the material rather than those who did not go to such expense or provide such coverage. The writer produces the copy while employed by and fully supported by the newspaper, and would not have got to Sydney without the newspaper. If the writer is then able to sell the material on to "Morning Ireland" or the news media, that lessens the rights of the newspaper. This measure distinguishes between print and other types of media. The Minister of State should look again at the phrasing of the section to cover the immediacy of news values while protecting the rights of the author to benefit from the further exploitation of the material, to which I am personally attached.

Mr. Ryan

One has to be conscious of Senator Hayes's point regarding the distinction between an employee and a freelance writer. If any media organisation, such as Independent Newspapers orThe Irish Times, sent a freelance journalist to cover a story, nothing in copyright law would stop that writer from giving the story to someone else first. However, that person would never again be sent to cover a story by that organisation. That is probably a more effective sanction than copyright law. We are talking about copyright, not about writers' obligations or responsibilities to their employers. There is a distinction between immediacy and the longer issue of copyright. On Committee Stage Senator Henry mentioned that in some newspaper organisations good stories are suppressed for reasons which are not very noble. Technically, if this amendment is accepted these stories would stay suppressed for ever and that does not do much for freedom of expression.

Third, there is a difference – although not in Britain and I accept the problem about British newspapers – in that all electronic media are heavily regulated, for example television. The Internet is an exception but as we do not define it, we cannot talk about it properly. Anybody can start a newspaper but not anybody can start a television or radio station. It is limited and, therefore, anomalies will arise from our tradition.

We should consider the position we would be in if newspapers could buy exclusive rights to report on football matches. We tolerate arrangements in some sections of the media which we would not dream of tolerating elsewhere. It would make no sense for onlyThe Irish Times to report on the all-Ireland because they paid the GAA £x million and for everybody else to wait until the next day.

There is a convergence of media. The degree of convergence is overstated. People will not stop buying newspapers within the next 70 or 80 years. Some people on the margins readThe Irish Times on the web rather than buy it but it is a marginal change in habits rather than a fundamental one. Therefore, I would not worry too much about the convergence issue.

Newspapers have a legitimate concern that an employee should not be able to attempt to use copyright law to sell the consequences of that newspaper's investment to someone else first. However, we must also protect the rights of journalists. With regard to it applying universally, I have no objections to a similar exemption applying to everybody.

As far as the British media is concerned we need to delve deeper into the issue of copyright. Copyright concerns where something originates and is sold. Many British newspapers are printed in this country, for exampleThe Sunday Times. Also, many Irish journalists work for The Sunday Times and produce most of the stories which have made it a serious competitor of Irish newspapers. The stories are put together and printed in this country so one could argue they are covered by Irish copyright law rather than British copyright law. Some unpleasant recent stories from a British newspaper were unfortunately put together by an Irish newspaper. The British-Irish issue is not as clear cut as some might say.

I am not in favour of this amendment but I encourage the Minister to consider yet again a way to protect the clear right of newspapers to prior call on the work of their employees. That is the only legitimate concern they might have here.

This section has proved interesting for debate and I will endeavour to respond to the concerns expressed. There are two different strands of thinking with a middle ground. In my earlier statement I established myself clearly on the middle ground. Senator Coghlan asked me where exactly my thinking lies. The two different strands of thinking are the position of the news paper industry and the position of the National Union of Journalists. I remind Senators they are poles apart. The newspaper industry would like the deletion of this section. The NUJ would like its position further strengthened. It is important to make that point because the NUJ is obviously not lobbying for the deletion of this section. They have told me and some Senators they would like more rights than the section grants them.

The position on UK newspapers is that all of the copyright resides with the proprietors and owners and Senator Ryan rightly referred to this. There are many reasons for that. They own the copyright completely. It is important we are discussing employee journalists. Many journalists are freelance, including a colleague of the Senators.

I have considered the position carefully. Senator Quinn asked why it refers to print journalists and not others and that is a legitimate question. There has been a traditional right applying to print journalists. One might argue that is not reason enough but it is a strong one with regard to the traditional role of the print media. If one has an opportunity to introduce a consensus on these opposing interests and refine the law, then one should do that. My proposal is sensible, fair and just. Journalists employed by newspapers have traditionally enjoyed a copyright interest in their work, except in relation to the use of those works in newspapers. This Bill would remove this retained copyright to the considerable benefit of newspapers. Subsection (2), which imparts no more than a limited right of use to employee journalists outside the newspaper context, appears to represent a reasonable compromise between the interests of the journalists and those of their employers, bearing in mind the historical background to this provision.

The position outlined by Senator Maurice Hayes relates to Senator Ryan's point about immediacy. The Senator outlined a situation where a newspaper sends an employee journalist to the Olympics and the journalist passes on his work to "Morning Ireland". That would almost certainly be in breach of the contract and would cause a fundamental breakdown of trust between employee and employer. It might even be grounds for dismissal under employment law. It is a good idea to outline practical examples when dealing with legislation. To give another scenario, if an employee journalist writes articles for a newspaper and years later uses the articles in book form, it would be reasonable that the copyright in that type of residual work, the book, would be vested in the author, the former employee journalist. I am trying to make provision for such a scenario. It is a reasonable compromise. As I said earlier it does not please either side. When one is not pleasing two opposite interests, hopefully one is doing something fair and reasonable.

Senators have asked me if there is another way around this. I have examined it at considerable length and that is the best position we can present in this legislation. I have covered most questions raised. This issue has had much comment from the public and Senators and I thank them for that. This is a reasonable compromise. Proprietors will have considerable copyright ownership and employee journalists will be able to use some of their work. The section states ". . . the author may use the work for any purpose, other than for the purposes of making available that work to newspapers or periodicals . . . ". Therefore, it is for other purposes and I think it is a reasonable proposal.

The Minister is wrong to state that the NUJ is in agreement with this section. That is the reason I had to table this amendment. Its members were aggrieved, even though they are coming at it from a different angle.

This is better than deletion. If we delete it, the NUJ will be more dissatisfied.

No. The NUJ has stated—

No, that is the truth.

—in black and white that because they seek the ownership of copyright for staff members—

—they also object to section 23(2).

No. What the NUJ wants is what we had in the draft Bill which I first published which was a stronger position on the part of journalists.

The truth is the Bill does not nearly provide a level playing pitch and, as Senator Quinn stated, it is simply not sustainable. The Minister is building in a discriminatory aspect here and I would worry about the constitutionality of it, particularly given the unanimity of the honourable five justices of the Supreme Court not too long ago on the Blascaoid Mór Act, because 17/25ths were treated one way and 8/25ths were treated another. We are talking here about people. Similar categories of people, all journalists, are being treated in an entirely different manner. This will not hold.

Amendment put and declared lost.

I move amendment No. 11:

In page 36, between lines 21 and 22, to insert the following:

"(a) the producer of the film;".

I was expecting a vote there, so I was not quite ready.

Perhaps it is that he got his lunch.

I am being reasonable.

Mr. Ryan

I wanted a chance to vote with the Government.

We will not get a chance to vote with the Government.

This amendment is rather similar to a previous amendment and, therefore, to a certain extent it is a stalking horse which is left over from Committee Stage. Without going back on the point I made earlier about the difficulty I have with describing and including certain people and not others here, I suggest that "the producer of the film" should be inserted here but I am not happy with it. When I spoke about this for some time on Committee Stage, the Minister explained the difficulty with regard to the producer and the company. He added that he would ask his officials to examine the legitimate issues raised by Senator Quinn. I am glad the Minister recognised that they were legitimate issues. I am not suggesting this is the ideal solution but it brings me back to what I stated about the other topic a few minutes ago. I hope the Minister has had time over the past three months to discuss it with his officials and that he has come up with a solution to the rather detailed and long-winded explanation that I gave – the Minister thought I was going to say something else – on that occasion. I will not go back into it again because the Minister and his officials heard the case and the difficulty I have with it. I was looking for a solution to it and I made some suggestions in that regard in another amendment and in this amendment. In tabling this amendment, I hoped the Minister would be able to respond to the words he used on 29 June, that after three months he would have found a solution to what he regards as a legitimate issue and that we would have found a way to make it even more legitimate.

I formally second the amendment and look forward to the Minister's trimester cogitations.

We certainly looked at this situation. The position is that the measurements which may be used in determining the duration of copyright in a film are set out in the EU copyright duration directive.

We are talking about amendment No. 11, the one to insert "the producer of the film".

Yes. I am coming to this.

I apologise.

The directive does not permit the inclusion of producers in this category. The problem is a practical one. Producers of films are often limited companies, which will not have natural lifespans and obviously this is a necessary characteristic for inclusion here. In view of these considerations, the amendment should be withdrawn. For example, the producer of a film could be 20th Century Fox and our problem is that we are talking about natural lifespan. Unlike other references in the Bill such as the principal director of the film or the author of the screenplay, for example, the producer may be a company and this poses a major problem.

This is similar to the earlier problem I addressed and the Minister answered that. I suggest, however, that it is not solved. A producer could be a company but the author may be a company in as much as whoever owns it is a company also. That does not solve the matter. It is left in abeyance. I hoped the Minister would have come up with a solution in the past three months to what he recognised was a legitimate issue. I imagine he probably will come up with a solution before the Bill is passed by the other House. I hoped it would have happened on this Stage. I will not press the amendment.

Amendment, by leave, withdrawn.

Amendment No. 12. Amendments Nos. 13 to 16, inclusive, are cognate and amendment No. 17 is related. Therefore, amendments Nos. 12 to 17, inclusive, to be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 12:

In page 36, line 35, to delete "50" and substitute "70".

I spoke about this on Committee Stage. These amendments are tabled in an effort to achieve consistency. There are two difficulties here. The Bill states that if it is written, the copyright will last for 70 years after the death of the writer. Section 26 states that:

The copyright in a sound recording shall expire–

(a)50 years after the sound recording is made, or

(b)where it is first lawfully made available to the public during the period specified in paragraph (a), 50 years after the date of such making available.

The Bill goes on to state that the copyright in a broadcast shall expire 50 years after the broadcast is first transmitted. Mention is made six or seven times in the Bill of 50 years after the broadcast is made. However, section 33 states:

Where the term of copyright in a work is not calculated from the death of the author or authors and the work is not lawfully made available to the public within 70 years of its creation, the copyright in that work shall expire on the expiration of that period of 70 years.

It is clear that in the case of a written work, the copyright applies for 70 years after the death of the author. There should be consistency. Whether it is 50 years or 70 years does not worry me. We argued for the inclusion of 70 years on the grounds that it was likely to make sure that people who live longer in the future would be covered by it. The argument is to substitute "70" for "50". It could easily have been 50 instead of 70. I suggest that wherever "50" occurs in the Bill it should be replaced by "70". At least that is consistent and my case is just one for consistency.

The Minister may well have a reason for saying "50" in some cases and "70" in the others. I think there is a strong case for being consistent here.

I second the amendment.

This group of amendments all deal with the question of duration of copyright. This area is effectively governed by European Union and international law, as I said earlier. Article 3 of the EU directive on duration of copyright enjoins set 50-year duration periods in respect of sound recordings, broadcasts and cable programmes, and therefore I cannot accept amendments Nos. 12, 13, 14, and 15. Likewise, Article 4 of the same directive enjoins a set duration period of 25 years for the endurance of rights in previously unpublished works, dating from the time at which they are lawfully made available to the public, and therefore I must also decline to accept amendment No. 17.

As regards amendment No. 16, Article 12 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, known as the TRIPs Agreement, sets a residual minimum period of protection of 50 years for most categories of copyright work. This requirement is the basis of the 50-year duration assigned to copyright in typographical arrangements of published editions, and I consider this period more than sufficient for a category of protection which generally works only to give a degree of protection to published editions of works already out of copyright in the usual sense. Accordingly, I cannot accept this amendment.

I am not going to press it. In fact the Minister has answered one of the queries I had on Committee Stage. He told us that his hands were tied by this, it was not in our own hands. I asked for the detail of how it was tied and the Minister has just given me that. I am happy not to press it and withdraw my amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 13 to 17, inclusive, not moved.

I move amendment No. 18:

In page 39, between lines 18 and 19, to insert the following:

"(3)There shall be a presumption that material which is published on the Internet may be copied accurately and with an acknowledgement of its source, without formal permission, unless a statement to the contrary is published with the material on the Internet site.".

We discussed this situation at some length on Committee Stage. While I know the Minister wants the Bill to be medium neutral, we have to look on the Internet in a separate way. When we talked earlier about Senator Ryan's amendments on the Internet it became clear how difficult it is to deal with this area. At the time the Minister also said that he thought it would be in conflict with the Berne Convention, Article 2 of the Paris Act—

Article 5(2).

—on copyright. It was actually thought to be in conflict with that. I do not think the Internet was around then, so the Minister cannot blame the people who were involved in the Paris Act at the Berne Convention for not thinking of it. Perhaps it is the Berne Convention that needs a bit of tweaking up rather than us ignoring it in this situation.

When one puts work on the Internet it is generally accepted that it is for public consumption. I cannot but see that it will be incredibly easy for someone, a librarian for example, who wants to copy articles from the Internet, which after all is transient. If you do not get it when it is on the Internet, sometimes it is gone. If you do not have some allowance for letting people copy items I can see there will be dreadful problems. There could be a huge waste of time and money with people trying to contact the author of the article and when you get hold of them and they eventually say, "But of course you can copy it if you want to because you can copy it anyway." How could one enforce anything to do with copying articles off the Internet?

Perhaps my amendment will not totally satisfy what is required, perhaps other people will have better suggestions. We are dealing with a transient medium, and one in which there may be a great deal of difficulty in the time allowed trying to get hold of whoever was involved in putting the article on the Internet, who perhaps was not the one who wrote it in the first place. Most people who write articles accept, if they have put it on the Internet, that it is there for everyone's consumption. I thought this was to be one of the values of the Internet, that we would all be able to have access to it. If people copy things from the Internet, librarians for example, will we run into trouble here? I do not see it being the same as a book or a CD-ROM.

I hope the Minister accepts this amendment because if people try to enforce copyright before other people get an article off the Internet it could cause great confusion and might mean the loss of articles in useful situations. At the same time who will say that you were not getting copyright for getting these articles from the Internet?

I second the amendment. Senator Henry has made exactly the case that has to be made. We have made the case before. It is one that we think needs consideration and I support every word that Senator Henry has said.

Mr. Ryan

Let me try to elaborate a little on the complexities of this issue. This is one of the reasons I believe addressing a definition would have been useful. First, Senator Henry proposes to amend section 28 which deals with copying and defines it as ". . . shall be construed as including references to . . . storing the work in any medium, . . . ". If I access a web page via the Internet using Netscape or Internet Explorer my software automatically caches that page on my computer. To a degree I have already a copy of it simply by accessing that page via the Internet. We need to be careful. I do not think Senator Henry's amendment deals with this problem. The act of accessing the Internet will result in the making of a copy and, therefore, it will be illegal unless it is covered by one of the exemptions contained in Chapter 6. If you read the exceptions contained in Chapter 6 they do not really stretch into this area.

Second, anyone who puts information over which they have control on the Internet and does not expect it to be ripped off left, right and centre, totally oblivious to copyright, is being naive. It would be worthwhile, at some stage, for us to talk about this genuinely. I believe that either the Internet will have to come under almost totalitarian control or many concepts of copyright will go out the window. The music industry is in a state of frenzied panic about MP3. The sort of solutions that are being proposed are almost totalitarian. They are about suppressing access to technology or about imposing restrictions on how people can access the Internet which would appeal to the governments in Saudi Arabia or China because they would give wonderful control but effectively impossible in a free society. The best you can do with the Internet is to remind people about two things. First, for anything they put on it, which is their right to put on it, over which they have legal control, they will not be able to protect their copyright. Second is to try to deal with people involved in wholesale piracy via the Internet. The idea that you can control the Internet is a fundamental flaw. Even more fundamental, the software that you use to access the Internet, judging by the definitions that we have, involves you in a breach of copyright law virtually every time you use it.

I again thank the Senators for their comments on this important area. Another interesting aspect to this debate has been introduced. This amendment would have the effect of subjecting the enjoyment of copyright by rights holders to a formality – that is another point that is important to make if we look at it from the position of the copyright rights holder – in the form of a requirement to make a copyright state ment on works made available through the Internet in order to be able to avail of protection. We will come back to the Berne Convention that Senator Henry mentioned. It is Article 5(2) of the Paris Act of the Berne Convention on copyright, the foundation treaty of current international law. This formality would be contrary to that Act. Senator Henry is right. The Berne Convention was last updated by the Paris Act, 1971. It is clear that people have being trying to apply the legislation to modern technology ever since. I am not in a position to accept this amendment since achieving compliance with the Berne Convention is a major strand of this Bill.

The issue of private copying in the information age that has been referred to by all the Senators is a major issue of interest to all of us in the development of the law in this area and will no doubt be the subject of many discussions in its national fora. We previously discussed the debate around the EU directive on copyright and the information society. These issues are central to that debate. However, measures such as this, which could have the effect of seriously undermining the benefits of copyright protection in a major new medium for the communication of copyright work, are unlikely to be the required response. Apart from anything else, in view of the fact that this could seriously prejudice the willingness of copyright rights holder to place their work on those media for the benefit of the public at large there is a dilemma here. I understand precisely where my colleagues are coming from but I cannot accept this amendment in the context of the EU and the conventions which exist.

It is a pity we are trying to enact 1999 legislation in line with something from 1971, which was probably considered five years before that anyway. Surely legislation on copyright and the Internet is being changed elsewhere. One will find people will not put articles over which they feel they have copyright on the Internet because they will not control copyright over it. People put things on the Internet because they want it disseminated as widely as possible. There is a serious debate taking place about the Internet and scientific journals and what can be done – Senator Ryan may have read about this too – about preventing articles being put on the Internet and coming out as though they are the Gospel when they have not even been peer reviewed. We have major problems here, far from the problem that someone's copyright work will be stolen. There is a problem in that people believe that everything on the Internet must be right. This is a more serious issue for people who are publishing work than the fact that it may infringe their copyrights.

The Minister of State is obviously not going to accept this amendment but will he try to produce something between now and before the Bill goes to the Dáil because it does not look as though it makes sense? I would not worry about it so much because I do not surf the Internet all the time, but more and more work is being put on the Internet. To base this on something in 1971 which was part of the Berne Convention is not sensible. One must ensure that cognisance must be taken – as was taken earlier when the Minister accepted Senator Ryan's amendment – about the changes in information technology. This is another change. The changes over the past five years have been staggering. One can hardly blame the Berne Convention for the changes we may have to make. Does it matter if we are in conflict with it because it is the Berne Convention that needs to be brought into line, not the present legislation? I would not like to see legislation introduced which is more than a generation out of date without seriously realising that this is what we are doing. I do not see how it can be enforced anyway.

Is the amendment being pressed?

There is no point. I would like the Minister of State to consider it.

I will indeed. I am not in order to go back but will the Senator look at section 83? I will consider this in the context of the EU directive and the discussion on the information society.

I thank the Minister of State.

Amendment, by leave, withdrawn.

I move amendment No. 19:

In page 39, line 26, after "Internet" to insert "or through any publicly accessible computer network".

I am surprised this amendment was linked with amendment No. 4. I will not spend time on it because it is similar to amendment No. 4. To use the word "Internet" is correct but, as it is limited, the words "or through any publicly accessible computer network" should be included. The term "Internet" may not be in use in five or ten years. It is a reasonable amendment. I fear that the term "Internet" is too short lived. Just as we spoke about stamps, letters and the way we delivered messages up to now I doubt if the word "Internet" will last. I say this in the interests of ensuring that this Bill lasts into the next generation and the next millennium and in the hope that the Minister will not have to change things. It is a worthy amendment and the Minister should accept it.

I second the amendment. This amendment ensures that a term does not become obsolete faster than we think. This morning, Senator Ryan said how the Internet has frequently been referred to as the web. For instance, during a court case in 15 years' time someone could say "Sure it was not on the Internet, it was on the web". There is nothing about the web here. It would be a good precaution to accept this amendment. These words are not superfluous to the Bill.

Mr. Ryan

I support Senator Quinn. There are a number of computer networks the public have available to them which are not part of the Internet. All the banklink networks are, essentially, a network of computers to which the public have access. I do not wish to be awkward but this is the detail of legislation. One could argue that if the Bank of Ireland or AIB decided to make a copy of somebody else's work, and publish it as a little picture on their screen, they would not be in breach of copyright according to this legislation because it is not on the Internet yet it is being made available to the public through a network of computers. Whatever about the merits or demerits of the definition of the Internet, there are other networks of computers, which will become more common, to which the public will have access. It would be anomalous if some of them were not clearly covered to protect the copyright of the owners of whatever material might turn up.

I am sympathetic to this proposal but perhaps rather than accept it now I will seriously consider it in the context of the next stage. The advice would be to oppose the amendment and the reasons are that it would raise difficulties in making works available through publicly accessible intranets. Limited networks of computers which could be operating on a number of bases range from something akin to a community cable based network to networks within publicly accessible institutions, such as schools and libraries. Undoubtedly, it is possible there are cases in which the inclusion of material in Internet databases will be what we described as "making available" in the terms meant by section 39 which is the subject of the present amendment. The general provisions of section 39(1)(a) should capture these instances, although I accept that there may be practical difficulties of deciding in particular cases whether making available in the terms meant by the Bill will actually have taken place. Rather than adopting a hard and fast rule which might operate unreasonably in view of the wide differences that might arise depending on the circumstances of the Internet involved, my advice would be to rely on section 39 as it stands, at least pending further consideration and clarification of the issue. There is a case here which needs to be considered. I will not concede today, Senator, but I will do my best to consider it between now and Final Stage.

There is a case here. I had hoped it would have been considered in the past few months and have been solved. We will keep our eyes on it in the other House but I would have liked to have thought that in the past few months we could have come up with an answer to it. The Bill is flawed until this problem is solved, not only here but elsewhere. The word "Internet" is far too restrictive. The words "or through any publicly accessible computer network" are as good as we will get.

Amendment, by leave, withdrawn.

I move amendment No. 20:

In page 40, line 6, after "subsection" to insert "retains control over the copies so made available and".

My concern is a practical one. It would appear from the Bill, as drafted, that if you allow someone to use your photocopier you are responsible for what happens to the photocopies. I am seeking to include in the section "retains control over the copies so made" otherwise it appears that such person is responsible for what happens to the photocopies once they leave, say, the office. That seems very broad. I am concerned about that aspect of the Bill. A person would be held responsible if they allowed another person to make the photocopies and that person misused them.

I support Senator Henry's point. It should apply if the person retains control and not apply otherwise. Photocopiers are so common now that it is possible to do that. I would hate if the Bill were to become unacceptable legislation in the future because we were unable to control this problem. This amendment seeks to address that problem. It may well be that there is a better way of doing it. Senator Henry has explained the objective of the amendment and it is worthy of consideration.

Mr. Ryan

Senator Henry made a valid point. This is an issue about which we cannot dictate to the owners of photocopiers etc. Let us not keep looking backwards. Within five years half, if not three-quarters, of the homes in Ireland will be able to copy CDs. Within another five years they will probably be able to copy DVDs also. The capacity to copy is spiralling at an exponential rate. The idea that the owner of a facility who permitted a person to make copies could be liable for anything other than stopping people with bad intent in advance is unfair and impossible to enforce. What will happen is that some of the hit squad types who go over the top on these issues will pick on individuals occasionally. Nobody wants people to be able to make copies but it is happening and the industry will have to live with the fact that it is continuing. Technology is running away with the legal concept. We are seeking to ensure that what we aspire to make law is practical and reasonable. That is what Senator Henry is seeking to do.

The intention of section 39(4) is to secure for rights of owners a general remedy to require that infringing material be taken down from facilities which might be used as media for infringement. This will include, for example, the so-called cash copies which facilitate the operation of the Internet and which could perhaps be said to be retained or under the control of the operator of the facility. However, Internet service providers might debate the accuracy even of that statement and there is the possibility of other infringing copies of infringing material existing on facilities, including for example some types of technical copy where the issue of retention of control might be more doubtful again. I thank the Senators for their amendment. However, following further consideration I would be concerned that a provision along these lines could undermine the purpose of section 39(4) and I, therefore, cannot accept this amendment.

The Minister of State's explanation refers again to his concern about the Internet. He says that my amendment would weaken that part of the Bill. We could have a very odd situation whereby someone who merely owns a photocopier and allows someone to use it could be held responsible for what happens. What the Minister said does not clear up my point. These people, apparently, will be responsible for ensuing problems if they allow people to use their photocopiers. That will cause a great deal of trouble. I do not see how it can be enforced.

Amendment, by leave, withdrawn.

Mr. Ryan

I move amendment No. 21:

21. In page 40, between lines 10 and 11, to insert the following:

"(5)For the avoidance of doubt subsection (4) does not apply to persons who only provide facilities to allow persons to access the Internet.".

I am concerned that we have created a situation whereby if you do not like the message, you shoot the messenger. It is, in my view, a symptom of our floundering around. I am not criticising the Minister because we are all floundering around in the area of changing access to information. The Minister used the phrase "notify and take-down requirement" a number of times in his Second Stage speech and since. The person who makes available facilities to access the Internet is not necessarily the person who makes the infringing material available. There is no point in telephoning Eircom and instructing them to take down material because it is breaching the copyright of, perhaps, somebody with whom Senator Mooney is working in the music industry when it turns out that the actual site is based on California or Japan. What we are going to say to these ISPs, to a degree, is that they have to figure out a way of enforcing laws because we cannot think of any way to do it.

My amendment is hastily drafted. If the Minister wishes to argue about its wording we will not get anywhere. The principle of my amendment is to ensure that Internet service providers are not blamed for breaches of the law which occur through the provision of that service. It is true that we can deal with site owners by way of international legislation but it is as realistic to say that as to say that Eircom should be responsible for people playing music over the telephone. It is not their fault, it is the people who use their facility who are in breach of the law.

I do not like legislation which is aspirational and which seeks to suggest that we are being good guys about these matters if it does not work. This will not work. It could result in ISPs being squeezed by larger competitors who would make life difficult for them. If we can find a way of doing it, I am quite happy to tell website owners and ISPs that anything provided by them must not be in breach of copyright law. That is prefectly reasonable. To suggest that a person who enabled me to access data, which is copyright, from anywhere in the world should have any legal liability to get rid of material that they have no control over is not the way to deal with this. I accept that this is very difficult territory. We would probably be better off to deal with it – and I have said this about a number of sections of the Bill – by more generalised provisions and a regular review via secondary legislation. We are putting in place unenforceable legislation which will be meaningless in less than ten years.

I second the amendment. I, too, like Senators Ryan and Quinn, am very concerned about how the Bill deals with the Internet. This is not the fault of the Minister of State or his Department. It is a totally new area. I spoke with a copyright lawyer in America on this subject and they are having an extremely difficult time with it too. It is not as though we are the only people in the world experiencing problems in this area. Putting in place unenforceable primary legislation is foolish, especially when so much of it will be interpreted by the courts in a way which we did not expect.

We once passed a dog muzzling Bill which was not enforceable. I hate to see unenforceable legislation. Senator Ryan has very competently described the danger of Eircom being charged because their lines are misused. This may not be – and Senator Ryan would be the first to admit that – the perfect solution but we have had three months to think it over and it seems to me that there is an opportunity to recognise that there is a problem and to see if we can arrive at a better solution. If not, the amendment offers the best alternative and I support it.

It appears that the effect of this amendment would be to negative much of the intent of section 39(4), which is extremely important and which is designed to allow aggrieved rights holders to require, among others, persons who only provide facilities to allow persons access the Internet to remove copyright infringing material from their systems. I refer here to the fact that service providers will only attract blame if they are notified of a breach and fail to act to remedy it. In the context of the Bill as a whole, I regard this measure as essential in securing rights holders' interests where their material may be carried on electronic networks such as the Internet. I do not regard it as unreasonable that, for example, mere suppliers of Internet services should be subject to such a requirement. I remind Senators that the powers provided in the section should provide practical tools to rights holders to uphold their rights under the law.

My motivation, which I know is shared by Senators, is to try to protect the rights of copyright holders and this is an important tool in doing that. For that reason, I cannot accept the amendment.

Mr. Ryan

As far as I am concerned, the purpose of the Bill is to protect the interests of large multinationals within whose interests are inserted the misfortunate human beings who happen to work for them. Let us not be under any illusion with regard to the purpose of the legislation.

What about musicians and artists?

Mr. Ryan

If it was only poor little artists operating on their own who were worried about these things—

The Bill involves much more than corporations.

Mr. Ryan

—the governments of the world would not be putting as much emphasis on it as they are. If poor little sculptors doing small exhibitions of their work were the only people concerned about this, those concerns would be placed far down the line of legislative priorities. That said, however – I do not mean to be excessively cantankerous – the Minister of State seems to be saying that if somebody with a legitimate concern about copyright discovers that, via Eircom or Indigo, a person can access a website that is not controlled by either company, Eircom or Indigo will be obliged to do something about it. What can they do? What can an Internet service provider do about a website halfway around the world which is breaching, for example, Senator Mooney's copyright? Let us not refer to the fact that it is dreadful that people's copyright is being taken from them, that is fair enough, but I do not know what those agencies can be required to do. They are not responsible for creating sites, they simply provide people with a connection, through a network of computers, to search for websites.

The Minister of State indicated that responsibility will lie with Eircom to take action against website owners who live halfway across the globe. That is a complete misunderstanding of the way Internet service providers operate and I am genuinely concerned because, first, it will not work and, second, if it did, it would lead to the development of a totalitarian situation where a small number of Internet service providers will be obliged to check every site accessed by people throughout the country in order to discover whether those sites were in breach of someone's copyright, to censor them, if necessary, and to prevent access to them. That is what the Minister of State is saying and it is nonsense because it will not work.

Is the amendment being pressed?

Mr. Ryan

Yes.

Amendment put and declared lost.

Amendments Nos. 23 to 25, inclusive, are cognate on amendment No. 22. Therefore, amendments Nos. 22 to 25, inclusive, may be discussed together by agreement.

Government amendment No. 22:
In page 43, line 1, to delete "An article" and substitute "A copy".

These are technical amendments to replace the word "article" with "copy". This section provides for the interpretation of an infringing copy of a work. Therefore, "copy" is a more appropriate term in the circumstances. Do I have Senators' agreement?

Thank you, Senators.

Mr. Ryan

It is a most profound amendment.

Amendment agreed to.
Government amendment No. 23:
In page 43, line 14, to delete "an article" and substitute "a copy".
Amendment agreed to.
Government amendment No. 24:
In page 43, line 16, to delete "article" and substitute "copy".
Amendment agreed to.
Government amendment No. 25:
In page 43, line 19, to delete "article" and substitute "copy".
Amendment agreed to.

I move amendment No. 26:

In page 45, line 9, to delete "private".

I second the amendment.

This amendment has already been discussed with amendment No. 5. I understand that the Minister of State is accepting the amendment.

Yes, we dealt with it earlier this morning.

Amendment agreed to.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 45, line 12, to delete "private" where it first occurs.

This amendment has already been discussed with amendment No. 5. I understand the Minister of State is accepting the amendment.

Amendment agreed to.
Amendment No. 29 not moved.

I move amendment No. 30:

In page 45, line 14, to delete "private".

I understand the Minister of State is accepting this amendment.

Yes, I am accepting it.

Amendment agreed to.
Amendments Nos. 31 and 32 not moved.

Amendment No. 33 in the name of Senator Quinn is also tabled by the Government and amendments Nos. 34 and 35 are related. Therefore, amendments Nos. 33, 34 and 35 may be discussed together, by agreement.

I move amendment No. 33:

In page 45, line 39, to delete "subject to subsection (3), fair" and substitute "Fair".

The Minister of State may remember that we discussed this on Committee Stage. Did the Cathaoirleach say that there is a Government amendment along the same lines?

Yes, so I understand, Senator.

Which amendment is that?

The first one.

It is the same amendment. The asterisk shows that it is a Government amendment.

I do not see an asterisk.

We are accepting amendments Nos. 33 and 35 but not No. 34.

The printer has omitted to include an asterisk on the list of amendments.

On which amendment was the asterisk supposed to be placed?

Amendments Nos. 33 and 35.

We are accepting amendments Nos. 33 and 35.

That solves my problem; amendment No. 34 was tabled for the same reason. I made that point on Committee Stage. I thank the Minister of State for accepting the amendments he indicated because it was the divisions between the different media which had presented problems. I appreciate his acceptance of amendment No. 33.

I second the amendment with joyful anticipation.

This proves the value of our discussions on the last occasion. In order to explain my position on this, and having examined the contributions of Senators Quinn and Henry on this aspect of the Bill, I must point out that Article 10 of the Berne Convention provides for possible free use of works for the purpose of reporting current events. On the last occasion, these amendments were also suggested which would result in the removal of any sufficient acknowledgment requirement in respect of the fair dealing with the work, other than a photograph, for the purpose of reporting current events. The text of this exception, as it currently stands, already provides that in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme, no acknowledgment is necessary. However, after further consideration of this matter, in particular in the light of Article 10 of the Berne Convention, I am of the view that a sufficient acknowledgment requirement should apply in connection with any reporting of current events, regardless of the medium through which same is conveyed. Accordingly, I have tabled a Government amendment detailing the necessary changes to this section and for avoidance of doubt I am accepting amendments Nos. 33 and 35 but I would request that amendment No. 34 be withdrawn.

I thank the Senators for this. I am conscious of so many recent news and sporting occasions when one television company has recorded the work of another. It is important that we make similar acknowledgment in the area raised by Senators. I thank the Senators for their proposals and I hope the House can accept my amendment.

Amendment agreed to.
Amendment No. 34 not moved.

I move amendment No. 35:

In page 45, to delete lines 43 to 45.

Amendment agreed to.

I move amendment No. 36:

In page 46, line 11, after "work" to insert ", where such use does not prejudice the interests of the owner of the copyright".

This section is too sweeping as it is and needs the qualification contained in my amendment if we are to maintain balance. I need say no more. I believe my amendment adds to the section and benefits the copyright holder.

I second the amendment .

I have looked again at this section since it was discussed on Committee Stage. Section 51 allows for incidental inclusion of copyright materials in other works without infringement of copyright as, for example, where a film is being made in Grafton Street and in the background, music can be heard being played from a record shop. For reasons of equity, the incidental inclusion of this music in the film should not give rise to any infringement of copyright in the music nor to any requirement on the film maker to pay royalties to the copyright owner for the use of that music in the film. That is the example I gave when we discussed this matter on Committee Stage. The provision of section 51(3) ensures that the music is only properly regarded as incidental to the making of the film if there is no deliberate act on the part of the film maker to include that music in his or her film. We have considered the matter and I am of the view that the Seanad amendment may go too far and, in fact, undermine this exception which is to cover purely innocent incidental inclusion. Therefore, I request that this amendment be withdrawn.

When one takes subsection (3) with subsection (1), I can understand the point the Minister of State is making. I thought the other might be a better solution but I stand by the Minister of State's view.

Senator Mooney, you may not speak now. Senator Quinn has replied.

Amendment, by leave, withdrawn.

Mr. Ryan

I move amendment No. 37:

In page 46, line 16, after "included." to insert the following:

"This subsection shall not apply to artistic works which are on permanent display in places to which the public have access provided that no infringement of the moral right of the copyright holder occurs."

This is not an amendment on which I feel extremely strongly but it raises a valid issue. We have a substantial amount of public art on display and I am concerned that this public art will be excluded from television work and film making, etc., on the grounds that art that is available to the public and paid for by the public is covered by copyright. Would someone who wished to film a piece for a television programme which included a background of some of the beautiful works of art on many of our roads have to seek the permission of the artist if the work were to be deliberately and not incidentally included? I understand the purpose of this legislation but works of art which are on permanent public display have been commissioned and paid for by the public and are quite different from works of art which are not in such a situation. I would like the Minister to address the simple question of works of art which are in permanent public positions.

I understand the question of incidental music in the background and I agree that the taking of people's property is always wrong but when artists agree to sell items for public display they, to a degree, hand over many of their rights. Artists are entitled to expect that their works will not be abused by their inclusion in another piece of work and that they will not be parodied – despite Senator Quinn's enthusiasm for parody – or used in a way which would undermine the quality of the work. The section makes a valid point but the issue of works of art which are on permanent public display arises and I tabled the amendment in order to encourage the Minister of State to respond to it.

I second the amendment. It is worthwhile clarifying this matter. Senator Ryan has explained very clearly the problem we could face when public works of art are used.

I missed the opportunity to speak on the previous amendment because of the procedural nature of the debate. That was my fault and not yours, Sir.

The clarification sought by Senator Ryan relates as much to the previous amendment as to this. May I illustrate the question of background? I am a music publisher and I have, fortunately, the assignment rights on a piece of music which was used as incidental music in the movie, "Cal", about the Northern Ireland troubles. In one scene a leading character gets into his car and turns on his radio. One minute of a piece of music is played while he is travelling in the car. This is not an integral part of the storyline although the song relates to Derry which is the location of the movie. Nevertheless the movie makers were obliged to seek copyright clearance and I have been receiving royalties – not an awful lot – and the writer, more particularly, has been receiving royalties. In the context of Senator Ryan's amendment, I hope the Minister of State will clarify the question of incidental and background use. The amendment appears to eliminate a right and is a retrogressive rather than progressive step. I am open to correction on this point and I would like to hear the Minister of State clarify it.

Senator Ryan is approaching the question from a different angle. He says the background or incidental use of works of art should not be deemed an infringement of copyright. While I have some sympathy with what he says, I wonder would the artist in question feel the same way if he or she was aware that the action of a movie or television film took place, for example, in a museum of modern art and in which the use of the works of art in the museum was an integral part of the movie. I give, as an example, a film which is currently showing in cinemas throughout Ireland, "The Thomas Crown Affair", which is centred on the theft of a piece of art from the New York Municipal Art Gallery. Not only is it an integral part of the movie, a number of works of art are shown throughout the movie. The movie makers sought overall copyright clearance for the Museum of Modern Art and the paintings. I am not sure that it is good that just because it is shown in the background and the public has access to it, the artist should not have the copyright.

The Bill is a response to the commercial exploitation of intellectual and creative property and indicates the manner in which the Minister of State and the Government will try to protect that.

Two points have been raised which, as Senator Mooney said, constitute two different approaches but it is good to hear both sides. Senator Ryan's amendment appears to allow the free inclusion of works located in public places in other copyright works without any restriction, even if that inclusion was deliberate. There can sometimes be practical difficulties in distinguishing when inclusion of a work located in public is deliberately included in a photograph or a film from cases where the inclusion is incidental. The amendment would represent a major departure from normal copyright principles and could significantly undermine the legitimate economic interest of certain artists and their works. For that reason, I cannot accept the amendment.

I saw the movie to which Senator Mooney referred. What song was Big Tom singing?

"My Old Home Town in Derry".

The inclusion of that music was deliberate, even if the composer and, indeed, the Senator, were just lucky that it was their song.

Yes, absolutely.

More luck to them in that case because they receive royalties. The theme music to the film is one of my favourites pieces of music.

I did not have the copyright for that.

I am not sure about Big Tom's song. Even if it was only played for one minute as someone got into a car, the music helped to create the atmosphere. It was important and was included deliberately. As Senator Mooney said, we are dealing with the legitimate economic interests of certain artists and copyright protection. Unfortunately, I cannot accept the amendment.

Mr. Ryan

I do not want to take away people's property rights but I just want us to be reasonable. I am glad that Senator Mooney has earned a little revenue from that excellent movie.

It was not a great deal.

Mr. Ryan

No, but it is an excellent movie. However, I am thinking of press photographers in particular and photographers generally who try to compose an interesting photograph. Their attention is captured by works of art around Dublin city centre, such as sculptures on St. Stephen's Green. Many photographs taken at the openings of exhibitions regularly appear in the gossip columns and arts pages of newspapers deliberately include in the background images of works on display. The implications of the prohibition on deliberate inclusion in certain areas creates something which will not be enforced or will be enforced occasionally by artists who have the resources or by the multinational organisations which are behind the drive to get this legislation through the Houses of the Oireachtas.

While I have every sympathy for Senator Mooney and those with whom he works, he would not want to believe that the real reason this is being done is out of concern for ordinary small people such as ourselves. There are bigger issues involved. The section is quite restrictive about objects that are accessible to the public and which are used deliberately by press photographers and others on a regular basis.

Amendment, by leave, withdrawn.

Amendments No. 41 and 48 are related to amendment No. 38. All may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 38:

In page 46, line 26, after "instruction" where it secondly occurs, to insert ", including instruction by means of distance education".

The amendment is necessary. It is easy to overlook the requirements of distance education or learning. This area is growing rapidly and it is another element of our lives which has changed radically following the arrival of new technology in recent times.

Senator Ryan referred to the fact that this legislation is being driven by the Americans. They are setting the pace but have acknowledged that their own Bill is defective because it over looked the requirements of distance education. They have been forced back to the drawing board in an attempt to correct that. I referred to this on Committee Stage and I am sure that the Minister of State and his officials are fully aware of that development. Distance education and how its needs impact on the copyright environment is not acknowledged in the Bill. I hoped the Minister of State would have recognised that over the past number of months.

If the legislation is to be framed on that basis, all three amendments are necessary and they speak for themselves. This is a question of recognising distance education and how it has changed with the advent of new technology.

I second the amendment. These are important amendments and Senator Quinn is to be commended for his constant interest in forms of education, other than primary, secondary and third level. If these amendments are not made, we may, as the Americans did, end up in a great deal of trouble which had not been anticipated.

The Senator has pressed the right buttons. We have followed the developments in the US with extreme interest and we take this issue seriously. The report of the US Copyright Office totalled 355 pages, but it did not manage to have this provision included in the Digital Millennium Copyright Act because it was not ready in time. Distance learning is important and I am considering these amendments, particularly in light of the recent report by the US Copyright Office. The office conducted an intensive study, which took about six months of copyright issues involved in digital distance education. The resulting comprehensive report gives an overview of the nature of distance learning today and aims to promote digital distance education and also to maintain an appropriate balance between users and owners of copyright. I assure Senators that this matter will be considered fully. Unfortunately, in the context of this Bill we are just not ready to deal with it but it will have to be dealt with and it is a question of timing and when we might be able to do that. The Senator has rightly raised an issue that must be dealt with. The US did not manage to deal with it because they were not ready. The same would apply here. We will have to deal with it but my advice is that we are not ready to deal with it now.

I will accept the Minister of State's efforts on that. If it is the case that the Americans realise they have not handled it, it seems a shame to allow this to go through. I had hoped in the last three months we might have been able to manage it. I understand the Minister of State has not been able to do so but, hopefully, it will be corrected before the Bill is completed.

Amendment, by leave, withdrawn.

Acting Chairman

I wish to advise Senators that although the televising of proceedings is not taking place at present, the proceedings are still being reported. Are Senators satisfied to continue? Yes.

Amendment No. 42 is cognate to amendment No. 39. Amendments Nos. 39 and 42 may be taken together. Is that agreed? Agreed.

Mr. Ryan

I move amendment No. 39:

In page 46, line 28, after "by" to insert "or on behalf of".

I do not like going back over matters discussed on Committee Stage but—

Mr. Ryan

Just because the television cameras are not on the Senator should not get carried away.

Senator Ryan will look well on the radio.

Mr. Ryan

I probably look better on the radio than on the television at this stage in my life.

This is too restrictive. I have no problems with the section but why suggest that the copying shall not apply unless it is done by the person? Why can it not be done on their behalf? What difference does it make as long as the clear line of accountability is that it is done for me at my request by somebody else? The question about the reprographic process is a separate one. Why does it have to be done by me? Why can it not be done by someone acting on my instructions, where quite clearly I am the person who is legally responsible for it? That is the only argument.

I cannot understand what protection is being given by simply saying it must be done by me, given all of the other restrictions that exist in this section – the prohibition, for instance, of multiple copying and so on. I am at a loss to know why it is necessary in the interests of copyright ownership that the copying has to be done by the person giving or receiving instruction, rather than on behalf of the person giving or receiving instruction. The clear legal responsibility still rests with the person giving or receiving the instruction, it is simply a question of which hand makes the copy and I cannot see any great principle at risk here.

I second the amendment.

I thank the Senator. I remember the debate we had at the time and I can see the point he is making and we had time to examine it. The main doubts we had were whether the phrase "on behalf of" could be interpreted strictly enough to rule out copying by third parties, which would fall outside an exception designed to apply only to non-reprographic copying in a very limited way. Although we had the summer to examine this, the advice is not con clusive and we have not reached a definitive position yet. I will try to ensure the legal advice is expedited and that we reach a conclusion as soon as possible. I am asking the Senator not to push the amendment at this stage.

In the course of research on this, the question arose in America about the possibility of copyright infringement. To amplify what the Minister of State said, and it refers to Senator Ryan's point about multinationals, multinational interests in the United States have already been accused of copyright infringement of literary articles. It would be creating a dangerous precedent, despite what is being said, if there is a potential for infringement of copyright.

Mr. Ryan

The Minister of State says there is still study to be done. I am impatient that after three or four months we are still studying a Bill which was produced in draft form before it came before the Houses of the Oireachtas, but beyond that I do not wish to pursue the matter. The section is far too strict. My next amendment raises a more fundamental issue.

Amendment, by leave, withdrawn.

Mr. Ryan

I move amendment No. 40:

In page 46, to delete line 30.

I keep wondering whether the Minister of State is intent on getting us back to the era of the Book of Kells when copies were made by hand, to reintroduce the art of calligraphy, by saying that one can make a copy of a book or something else, provided one does not use the modern technology available. There is an element of King Canute, so to speak, about the idea that we are going to allow copies to be made as long as modern technology is not used. My amendment attempts to deal with reality, which is that, whether we like it or not, people all around the world are using a variety of reprographic processes to make copies, most of which breach nobody's copyright.

Sometimes people in academic life, for instance, make copies for reasons of instruction. If, for example, I may copy two pages out ofPerry's Chemical Engineers' Handbook, with which I am very familiar, because I want to make reference to it legitimately and legally in the course of a lecture, and I do not want to bring in a very large book. So one copies the page. That is legal and it will be acknowledged. It will probably persuade most of my students to buy Perry's because they hear about it so often and, therefore, it actually makes money for the publishers. To suggest that I would copy the data in Perry's about the thermal conductivity of water as its temperature varies, for instance, by writing it out myself – because nobody else is allowed to do it – instead of doing the intelligent simple thing and photocopying the data, is to pretend that the world is as it should not be.

Does this go back to the Berne Convention etc. and that we are talking about circumstances that existed almost 30 years ago? We are nearly at a stage now where every second home will have the reprographic equipment because most computers sold in the last two or three years provide a scanner and a printer as part of the package. Is somebody going to set up a scale of policing to go from house to house to check these matters? I am happy that people's rights to the commercial exploitation of their work should be defended vigorously where it is possible to do so in a sensible fashion. To place a prohibition on the use of reprographic equipment to make copies is a most meaningless aspiration. It is going to be done. There is no way around it. We should concentrate our resources on those areas where people are genuinely losing money rather than attempting to impose work practices that are 30 years out of date.

Debate adjourned.