I remind Senators 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.
Copyright and Related Rights Bill, 1999: Report Stage (Resumed) and Final Stage.
I move amendment No. 55:
In page 50, line 35, to delete "private" where it firstly occurs.
I thank the Minister for accepting the amendment.
Mr. Ryan
I second the amendment.
Amendment agreed to.
I move amendment No. 56:
In page 52, line 1, to delete "private" where it firstly occurs.
I thank the Minister for accepting the amendment.
Mr. Ryan
I second the amendment.
Amendment agreed to.
I move amendment No. 57:
In page 52, between lines 4 and 5, to insert the following:
"67.–The librarian or archivist of a library or archive prescribed by the Minister for the purpose of lending shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of that work. A librarian, archivist, person or establishment shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of a copy of that work to a library or archive prescribed by the Minister for the purpose of receiving such loans."
This amendment reflects the provision made in section 57 which states:
Educational establishments and establishments to which members of the public have access and are specified by the Minister for that purpose shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of the work.
This amendment proposes to make the same provision for librarians and archivists. The first part of the amendment deals with those in a library or archive lending and the other deals with people borrowing, in the case of one or other library or their not being covered. I hope the Minister accepts this amendment. I am sure it is not intended that payment should be made for copyright by those working in libraries or archives.
Mr. Ryan
I second the amendment.
I understand the Senator's intention. She referred to section 57. That section, in combination with section 39, is designed to produce the effect desired by the Senator. This view is supported by legal advice given to my Department by the Office of the Attorney General on this matter. Superimposing the present amendment on existing text would not be helpful in terms of function or ensuring clarity. In other words, what the Senator wishes to achieve will be achieved by the combination of sections 57 and 39. I do not wish to allow the present amendment to be superimposed when it is unnecessary. I cannot accept the amendment, therefore, even though I agree with her objectives. Accordingly, I ask Senator Henry to accept that her objectives can be achieved with a combination of sections 57 and 39.
I must accept the Minister of State's reassurance because he received legal advice that the combination of sections 57 and 39 will achieve what I want. I have not received legal advice to the contrary. I accept what he has said and thank him for his remarks.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 58:
In page 54, to delete lines 1 to 6.
Cuirim fáilte roimh an tAire. Is cosúil go bhfuilimid ag dul in aithne ar a chéile go ceann tamall fada anois.
Section 71, to which my amendment applies, is most peculiar. It is rare to find a case where two subsections are in direct opposition to each other. Section 71(1) provides that "Where . . . work has been communicated to the Government or either or both of the Houses of the Oireachtas for any purpose . . . " it can be published by either House without breach of copyright. This seems reasonable if the work of the Oireachtas is not to be frustrated. Section 71(2) provides that if such a work has been made available to the public in any other way or before it was submitted to the Oireachtas then it cannot be published. We should think this through.
Consider, for example, the appendices to complex reports where academics, for instance, supply copies of papers – we have talked at length about this issue over the past number of weeks – that have been published in learned journals as background information. If, as often happens, some of these documents are already in the public domain and are seminal to the construction of a report by an Oireachtas committee the public will discover that they cannot find the background information to the report even though the author made it available to the committee. This section will provide that if work has already been made available to the public before it comes to the Government or the Houses of the Oireachtas then it cannot be included in a report of the Houses of the Oireachtas.
The provision is nonsensical. We are talking about items of work, not large volumes of work, which are copyright in themselves and are necessary for the construction of an Oireachtas report. Once items of work are submitted voluntarily by the author or with their agreement the obvious corollary is that the author agrees that they should be included in a publication. Section 71(2) makes that impossible and hinders the capacity of the Government or the Oireachtas to produce coherent reports and documents. I propose that section 71(2) be deleted from the Bill.
I second the amendment. Senator Ryan has made his case ably and I agree that this provision could cause confusion in the future.
I want to clarify this matter in the light of the Senator's comments. I also thank Senator Ryan for his amendment. There is confusion about the intention of section 71. First, the purpose of section 71(1) is to permit the copying and issuing of copies of works to the public which have been communicated to the Government or the Oireachtas by or with the licence of the copyright owner.
Second, it permits the copying or issuing of copies to the public of an item containing the work which is owned by or in the custody or control of the Government or the Oireachtas. However, the Government or the Oireachtas may only do this for the purpose for which the work was communicated to it or any related purpose which could reasonably have been anticipated by the copyright owner. There are many examples of work which might be made available in this way. Letters and submissions, lowly as they may seem, may still be capable of meeting the test of copyright protection.
It is not the intention of this section to give the Government or the Oireachtas permission to make available to the public, by means such as conventional publication or the Internet, copies of works which have, as stated in section 71(2), ". . . previously been lawfully made available to the public . . . " by their authors or rights owners. This is the purpose of section 71(2). If such a situation were to be allowed this would represent a wholly excessive interference with the rights of authors and other rights holders to exploit their intellectual property. I cannot believe Senators would intend to do that. Section 71(2) is designed to preclude this undesirable side effect which could arise from section 71(1). Therefore, I am not in a position to accept the deletion of section 71(2). I hope my clarification of the matter is accepted.
If Maeve Binchy supplied one of her books to the Government it cannot make that book available without her consent. In this section we are trying to ensure that there is no infringement of copyright. Senator Ryan referred to certain possibilities but I hope, given my last example, that he will accept the motivation behind this section.
Mr. Ryan
I do not want to start off on a cantankerous note but I wish the Minister of State would address the question I asked. If the Government acquired copies of copyright material through the marketplace or by coercive means – the Government could demand a copy – I would understand why the copyright of the owner of the work would have to be protected. In section 71(1), as the Minister of State said, we are talking about work that has been ". . . communicated to the Government or either or both Houses of the Oireachtas for any purpose, by or with the licence of the copyright owner. . . ". In other words, the copyright owner is supplying this work freely to the Government or to the Houses of the Oireachtas. The section continues ". . . and any fixation of the work or any thing containing the work is owned by, or is in the possession, custody or control of, the Government or either or both of the Houses of the Oireachtas, the Government or either or both of the Houses of the Oireachtas may copy the work, make available to the public copies of the work, or cause the work to be copied or made available to the public for the purpose for which the work was communicated to them . . . ", not for any purposes.
Section 71(1) provides that where someone freely makes something available to the Government or a House of the Oireachtas then the Government or the Houses of the Oireachtas can publish that for the purposes for which the material was supplied to them, not to make money out of Maeve Binchy's books, for example. That provision seems perfectly reasonable. First, people are not being coerced into this and, second, it is only for a particular purpose that it can be published.
Section 71(2) provides that it cannot be published, even though it was supplied for a specific purpose. Under the clear and carefully drafted words work cannot be published by the Government even though it was supplied for a purpose which cannot be completed without it. Someone will have invited or persuaded authors or owners of copyright to make material available. These authors or owners will have agreed to do so for reasons connected to a particular case. We are saying that even if they agree to give it to the Government, the Government cannot use it for the purpose for which it was given to them if it was published before. In spite of what the Minister of State said, that is a contradiction. Section 71(2) contradicts the intent of section 71(1). It would be different if this material was being supplied because the Government made it a legal obligation.
This is not the case. We are saying if people supply us with something with their full consent we will then say we cannot include it in the document, even though it is for a particular purpose. That does not make sense. It raises issues about, say, a White Paper on the Arts where work could be supplied to Government as examples but because they were previously published Government cannot publish them. A fundamental contradiction exists between subsections (1) and (2). Unfortunately the Minister has not explained it to me. It seems to be one of the peculiarities of this legislation where imagined loopholes, on a scale which I have never witnessed before, are closed off with alarming vigour. The introduction of this provision will effectively emasculate many reports produced by Government and the Houses of the Oireachtas. It will make life difficult for people trying to read them and we will make us appear foolish in the long run.
Subsection (2) says that the Government may only make copies available under the terms of subsection (1) and not otherwise. It also states: ". . . has previously been lawfully made available to the public otherwise than under this section." That is very relevant to what Senator Ryan said.
Is the amendment being pressed?
Mr. Ryan
I am constrained by rules. That is not what subsection (2) says. Subsection (2)—
Senator Ryan has already replied.
Mr. Ryan
—says: ". . . copies of a work referred to in subsection (1). . . " not "otherwise than in subsection (1)". The Minister is wrong. That is not what the subsection says.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Government amendment No. 59:
In page 59, between lines 4 and 5, to insert the following:
"(3)Where a copy, which would otherwise be an infringing copy, is made under this section and is subsequently sold, rented or lent, or offered or exposed for sale, rental and loan, or otherwise made available to the public, it shall be deemed to be an infringing copy for those purposes and for all subsequent purposes.".
Section 86 allows for the reading or recitation in public of an extract from a literary or dramatic work which has lawfully been made available to the public provided same is accompanied by a sufficient acknowledgement without infringing any copyright in that literary or dramatic work. This section further permits the making of a fixation of or broadcasting or inclusion in a cable programme service of that reading or recitation. The amendment is being introduced to control further downstream uses of those fixations or the broadcasting or inclusion in a cable programme service of those readings or recitations.
Mr. Ryan
lt is becoming obvious to me that it is going to be easier to squat on a plot of land than it would be to create copyright by the time we are finished. We are carrying property rights in this area to a degree of prescription that no other area of property ownership has ever been given.
Amendment agreed to.
Amendment No. 61 is consequential on amendment No. 60 and they will be discussed together by agreement.
Government amendment No. 60:
60.In page 61, line 24, to delete "Subject to subsection (2), the" and substitute "The".
Section 96(2) as currently drafted would effectively invalidate the general exception in favour of home recording for the purpose of time shifting to the extent that the exception might interfere with the capacity of a rights holder to put in place a scheme of technological protection designed to exclude or restrict access to the subject protected material. In part, this qualification of the exception would apply to protected digital copies or representations thereof. I have received representations which brought to my intention that to introduce such a qualification to this exception would pre-empt current negotiations on the proposed EU directive on copyright in the information society in which the question of the future scope and effect in law of exceptions to copyright is central and also negotiations currently under way between rights holders and the consumer electronics industry regarding practical aspects of this question. For these reasons I am proposing the deletion of section 96(2) from the Bill. However, I can assure Senators that this matter will be reviewed in the context of the transposition of the directive on copyright in the information society in due course.
Mr. Ryan
I do not object to the amendment. Yet again, I see looming in the background the seeds of a – not deliberate – quasi-totalitarian control on the sort of technology which will be available to the public. I know that the music industry is terrified of MP3 and of many other technological and other innovations. There have been suggestions from some of the major interests in this area that certain forms of technology should be withheld from the public because they make copying easy. I have every sympathy with the property rights of copyright holders; I have no sympathies with suggestions that we are going to negotiate away from the pub lic access to technology that would otherwise be available to them. I am very wary of this idea.
I would like to know how it is to be enforced.
I share the views expressed by Senator Ryan and others on the need to protect the consumers' interests. I have said from day one that I am anxious to protect the consumer. We need to protect the individual at home who wishes to record something for their own use. When we speak about time shifting, we are speaking about the practice of recording television programmes. This matter was brought to my attention since I was last before the Seanad. It is for that reason the amendment is being introduced.
Amendment agreed to.
Government amendment No. 61:
In page 61, to delete lines 30 to 33.
Amendment agreed to.
Mr. Ryan
I move amendment No. 62:
In page 61, line 35, after "or" to insert "(otherwise than to a person's family member or friend for private and domestic purposes)".
Section 96(3) deals with the making of space for people making copies of material. I understand and accept that the Minister is anxious to ensure that no prohibition applies to people wishing to make private copies for subsequent viewing, though I understand there are sections of the industry who wish he would do so. However, it is a little extreme – depending on how one reads subsection (3) – to suggest that to loan such a copy to anybody would result in a person being in breach of copyright law. It is possible to read subsection (3) in two different ways. Subsection (3) reads: "Where a fixation which would otherwise be an infringing copy is made under this section and is subsequently sold, rented or lent. . . . . it shall be deemed to be an infringing copy. . . . ." Perhaps the Minister will explain that to me in a not too, to coin an awful phrase, fixated way. We have to make it clear that we are not suggesting that if a member of a family tapes a programme and lends it to another member or friend, for no financial gain, that he or she is in breach of copyright law.
I second the amendment.
I understand the purpose of the amendment. I would have thought that as a practical matter family members, and in some circumstances friends, could reasonably be regarded as included in the scope of the section which is intended to cover only private copying for time shifting purposes. I hardly imagine that copying or the use of copies envisaged by Senators could reasonably be regarded as being covered by the terms "offered or exposed for sale, rental or loan or otherwise made available to the public" as contained in subsection (3). However, I would be concerned that a specific reference to the legally uncertain class of "friends" could leave the way open to copying and circulation of copies beyond the very limited scope intended by section 96. I appreciate Senators' concerns but inserting this amendment could, in fact, make the situation worse. For these reasons, I cannot accept the amendment.
Do you wish to reply, Senator Ryan?
Mr. Ryan
A Chathaoirligh, there is an implication there that I should not. First of all, I would say "touché". I agree with the Minister of State that the word "friends" is a little vague. Unless there is another agenda concerning subsequent changes, there is a great amount in the Bill which is entirely unenforceable and I am not sure for whose purposes it has been inserted. How can one enforce the distribution of a copy of a programme that somebody makes and five children loan to each other in school? I must refer again to the slightly totalitarian tone of the implication of much of this – that one will enforce rules and regulations in people's private, domestic lives that I thought we had begun to move away from.
Amendment, by leave, withdrawn.
Amendment No. 63 not moved.
Mr. Ryan
I move amendment No. 64:
In page 62, to delete lines 26 to 28.
This amendment relates to two others that I moved earlier. The section allows, quite admirably in principle, works to be modified; for instance, to be printed in Braille, in large print, or produced on audio tape. The section is fine except that where there is a licensing scheme certified under section 166, providing for the grant of licences, it cannot be done other than by agreement with the licence holder. That is wrong and unfair to blind people, in particular. There should be carte blanche within our copyright law to say that copies of books may be made available in Braille for people whose sight is impaired. Nobody should be allowed to interfere with that right for what essentially would be commercial purposes. Therefore, my amendment provides for the deletion of that exception to the otherwise very good intent of section 99.
I second the amendment, but I wish to do more than formally second it. I agreed with Senator Ryan that the worth of the section is removed by subsection (3). Can the Minister of State see his way towards accepting this amendment?
The Minister of State indicated earlier in the debate that he would look favourably upon this amendment. I hope that he will do so for the reasons stated by Senators Ryan and Henry, which I do not intend to repeat.
I intend to accept the amendment.
Mr. Ryan
Very good.
I thank the Senators for raising the needs of disabled persons. It is important that disabled people should be facilitated in every way in legislation. As Minister of State with responsibility for labour affairs, as well as the area of copyright law, I am happy that Senators have raised this point. This matter has been raised already in the context of negotiations on the forthcoming EU directive on copyright and the information society. Discussions are continuing but no conclusions have yet been drawn as to the appropriate form of an exception in favour of the disabled in the context of the proposed directive. The outcome of these negotiations could have a significant bearing on the future of exceptions to copyright. I will be keeping progress on that matter under review.
I have examined the amendment and in light of what Senators have said both today and in past debates, and the strong representations that have been made, I am happy to accept it. It will be necessary for this matter to be reconsidered in view of any adverse consequences that may follow from the changes in the EU directive. I again thank the Senators for raising this matter. I am delighted that we can add new measures that will support disabled persons.
Mr. Ryan
I probably will not be as effusive as Senator Henry, but I thank the Minster of State for accepting the amendment. It shows his goodwill towards the people for whom this section was designed.
Amendment agreed to.
Amendment No. 65 not moved.
Mr. Ryan
I move amendment No. 66:
In page 64, lines 30 and 31, to delete "which offends public morality or".
Section 107, to which this amendment refers, deals with circumstances that will not apply under what the Bill terms the integrity right. In other words, the circumstances under which copyright owners have a right to have their work made available to the public unedited. There is a large list of exceptions, most of which one could not take exception to. I am astonished, however, by one such exception in subsection (2)(b)(iii), which states that the integrity right is not infringed:
in the case of authorised broadcasters or authorised cable programme service providers, avoiding the inclusion in a programme which is broadcast or included in a cable programme service by those broadcasters or providers, of anything which offends public morality or which is likely to encourage or incite to crime or to lead to public disorder.
That is an astonishing power to give cable service providers or, indeed, broadcasters. The subsection is saying that people who broadcast the work of somebody who is regarded as having a copyright over the work, can delete part of it because they think it offends public morality, although there is no definition. Irish Multichannel can take a bit out of a BBC programme which it is sending out on its cable service because it considers that something in it offends public morality, and Cablelink can do the same in Dublin. In a free society, that is an astonishing power to give any service provider. If the Minister of State so wished, he could include the words "anything which breaches sections of the Obscene Publications Act", but the phrase "which offends public morality" invites cantankerous people to make complaints and to make trouble.
I do not believe the subsection would be used too much, but we are making law which is a statement of how society regulates and views itself. To include the phrase "which offends public morality" means that a small town cable operator can decide to click the button if he does not like part of a programme, yet there is no infringement of copyright in so doing. That is nonsense and in 1999 it is time we moved on. If we want to regulate matters such as decency we have broadcasting standards and many other ways of doing so, but prior censorship was something I thought we were moving away from.
I second the amendment. This is extraordinarily subjective. One could have various people deciding, on different channels, how part of a film would be changed because of different views on what constitutes public morality. I am sure that Ireland is very short on cranky people, such as those described by Senator Ryan, but one could have a total distortion of the content of some short films, in particular, if changes were made like this.
I appreciate the comments of both Senators. However, there is a practical advantage in ensuring that in such unusual situations – and, as both Senators have said, it would be unusual – in which broadcasters and cable programme service providers feel the need to revise material to eliminate truly objectionable content and their right to do so is not established by contract.
The service providers in question at least will not be totally barred by a moral rights consideration. The introduction of moral rights for the first time means that we must allow for cases where the author would not have the right to say that one had infringed his integrity rights. It provides some degree of legal protection for broadcasters or service providers. This is the thinking behind the provision and while its precise interpretation may find its way to the courts, there is sufficient practical reasons to maintain section 105(2)(b)(iii) in its present form. The purpose of the introduction of the moral and integrity rights is to try to give some protection to broadcasters or the service providers in such situations. However, I believe they will be limited.
Mr. Ryan
The Minister's comments are valid. I have no desire to have a cable service which will flood the country with a selection of hard core pornography from some of the satellite services which are available in Europe. However, that is a matter for the Independent Radio and Television Commission and the various regulatory bodies to address. This gives people the right to cut parts of a particular programme because they do not like them, not to deal with broadcasting standards.
One can pick out a piece which offends public morality but I do not like the idea that cable service providers, who are paid to relay a service, should be able to decide which bits of programmes they are relaying offend public morality. Similarly, I do not like the part of the provision which states "which is likely to encourage or incite to crime or to lead to public disorder". These are dreadful phrases and I have a strong suspicion that they originated in the Department of Justice, Equality and Law Reform because, in my experience, such language is prevalent there. They have a perception of the world there which is different from everywhere else.
I have no desire to have the country saturated with offensive programmes but there is an effective regulatory mechanism. The proposal to give a second chance to individual organisations to do different things in different places under different circumstances is nonsense. It is sloppy legislation which I suspect was included in a rush in case the moral minority took exception. The provision will be used all over the country by the sort of "loo-las" who sometimes speak in the Seanad to put pressure on cable operators to excise programmes by telling them they are not in breach of copyright and to take out the bits. This could be extended to book shops also. They could be told that they can black out all the dirty bits in books before they are sold. The same principle applies; it is dangerous territory if the provider of the service is to be allowed to edit what is acceptable or unacceptable. The Minister did not meet my concerns.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 67, 97 and 98 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 67:
In page 64, between lines 41 and 42 to insert the following:
"106.–The integrity right shall be incapable of assignment or alienation but shall be waivable in writing by the author.".
The only purpose served by section 122(3) is to negate the presumptions provided for in section 134. If, in an action for infringement of the copyright in a work, the defendant does not admit that the plaintiff is the owner of the copyright, the subsection provides that the court may order that this issue be tried separately on the basis of affidavits from both parties and, in certain circumstances, oral testimony. However, section 134(3) provides that the plaintiff shall be presumed to be the owner of the copyright or, as the case may be, the exclusive licensee of the copyright until the contrary is proved.
Legal advice from a legal authority on the issue of whether the presumptions in section 134 are permissible under the Constitution is that they are constitutional. Therefore, section 122(3) is unnecessary. It is also regressive because it could lead to a return to the unacceptable situation where executives from record companies in the United States must fly to Ireland to appear in the District Court to give evidence in relation to the ownership of copyright and sound recordings. This is why I urge the Minister to accept the deletion of this subsection.
Mr. Ryan
I second the amendment.
I said earlier that I appreciate the problem which the amendment seeks to address, which is the possibility, as the Senator outlined, that section 122(3) might undo the effect of the presumptions in favour of rights' holders contained in section 134. I repeat that this was not the intention. The presumptions in section 134, which were first enacted by the Intellectual Property (Miscellaneous Provisions) Act, 1998, are of great importance in supporting the rights of copyright rights' holders under the reformed regime of copyright. I am determined that their effect should not be undermined by section 122(3) or any other provision. The Senator shares my concern in that regard.
I am advised that the question of whether a real problem exists and, if so, how it might be solved raises complex legal issues. More than one possible solution has been suggested; the Senator has also put forward a possible solution. I am awaiting final advice from the Office of Attorney General on this matter and I intend to propose any remedial action which may be deemed necessary in the other House. In the meantime, I am not in a position to accept the amendment and I ask the Senator not to press it. However, I thank Senator Coghlan for drawing attention to this important point.
The Senator's amendment may be the solution but, as I said earlier, this is a complex and lengthy Bill. The point raised by him is being examined and I am anxious that 99.9 per cent of the Bill is dealt with by the Seanad. However, this matter is one of the remaining issues on which advice is required. It is an important point but I ask the Senator not to press it at this stage.
I am delighted by the Minister's comments and I wish to withdraw the amendment. The Minister has given a commitment to deal with this issue in the other House once the advice is to hand.
I wish to clarify a point, Senator Coghlan. You are dealing with amendment No. 67a, which was the additional amendment on today's Order Paper. Is that correct?
That is the amendment on which I spoke.
The amendment I called was amendment No. 67.
I beg forgiveness.
The confusion arose because the Senator did not move amendment No. 65. Amendments No. 67, 97 and 98 were to be discussed with amendment No. 65 but as that amendment was not moved—
That is correct.
—I then asked the Senator to move amendment No. 67 and to discuss amendments Nos. 97 and 98 with it. Do you wish to move amendment—
I think it falls into the same category as amendment No. 65, which was superseded by Committee Stage.
Is the position that amendment No. 67 is not moved and amendment No. 67a is withdrawn by leave of the House?
That is correct.
Correct.
I thank the Senator.
Amendment, by leave, withdrawn. 67a not moved.
Mr. Ryan
I move amendment No. 68:
In page 72, to delete lines 1 and 2.
We are now moving into territory in which extraordinary legal latitude is being given to copyright owners or people who claim copyright ownership. The thrust of the Bill is that if somebody claims ownership of a copyright, it is up to the person against whom he or she makes the claim to prove the contrary. The presumption in the Bill is that somebody who claims copyright is making a valid claim.
Section 122 deals with remedies.
Subsection (4) deals with orders to be made to deal with issues regarding infringement of copyright. It also deals with whether affidavits will be acceptable or oral hearings will be necessary. This is reasonable, except that subsection (5) provides that hearsay evidence may be accepted for the purposes of any hearing under subsection (4).
There is a well established principle in the courts that hearsay evidence is of very dubious benefit because it cannot be challenged, questioned or cross examined. Nothing can be done with it. Yet, under this section hearsay evidence may be acceptable for the purposes of any hearing under subsection (4). I am not sure what is the purpose of this. It may be a classic example of the Irish "to be sure, to be sure" approach, whereby we are stitching it up so carefully that we have thought of every possible way out. It is a very dubious principle to establish in law and I have strong suspicions that it may come into conflict with the Constitution in terms of the way our courts have decided how justice is to be dispensed. I will return to that when considering a later section, which I am certain is in breach of the Constitution. As regards this section, my amendment proposes the deletion of subsection (5), which would allow hearsay evidence to be used for the purposes of subsection (4), because it is a wrong principle in law.
I second the amendment.
This amendment is closely related to amendment No. 67a and the comments I made on that amendment would also apply here. We are seeking legal advice.
Mr. Ryan
I did not hear the Minister of State's reply to amendment No. 67a. Is he seriously saying he is now seeking legal advice about whether hearsay evidence would be acceptable? If not, what legal advice is he seeking?
We had a lengthy discussion on presumption and whether amendment No. 67a was necessary. I was clear in my response to Senator Coghlan. Something needs to be done in this area. This amendment is linked with amendment No. 67a and in view of this, the same applies. I mentioned we had addressed almost all matters in this debate and I expressed confidence that we would resolve all the outstanding issues. However, I went on to say this issue was unresolved and I described it as amounting to less than 0.1 per cent of the total number of issues that needed to be addressed. Nevertheless, I assured the House it would be given full consideration.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Mr. Ryan
I move amendment No. 69:
In page 73, to delete lines 46 and 47, and in page 74, to delete lines 1 to 6.
We are entering even more peculiar territory here. Section 127 deals with applications to the District Court for seizure of infringing copies, articles or devices. Nobody wants to allow people dispose of, or make money out of, other people's intellectual property. However, nobody wants drug dealing on the streets, nor any of the 100,000 other crimes that happen. That does not justify the introduction of draconian legislation which is out of proportion to the offence. Section 127(3) states:
In an application to the District Court under subsection (1) or, in an ex parte application or interlocutory motion to a court of competent jurisdiction . . . the court hearing such an application may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location.
Hearsay evidence could be John told Jack who told Mary who told Paddy it was there. It is a contradiction; it is not evidence. That is what is wrong with it. It is opinion, prejudice, judgment and that is why the courts are very reluctant to accept it.
Subsection (4) states:
A witness or deponent shall not be obliged to indicate the source of the information upon which that witness formed the belief that material may be found in a particular location.
That is an extraordinary privilege to grant people because, as far as I am aware, only the gardaí have it and even they do not have it as an absolute guarantee. The gardaí may claim privilege when questions arise about where they obtained information. They may also be given privilege, but they have no absolute guarantee. A judge may insist on at least being made aware of where the information came from, although a judge may not, and usually does not, insist.
However, in this instance we are inserting a provision regarding the right of people to give hearsay evidence. I will address this when we deal with amendment No. 70. Section 127(3) is yet another breach of our normal legal processes by allowing the admission of hearsay evidence and it is as wrong as the previous one.
I second the amendment. Our concern is that there was all summer to get legal advice on this matter. No Member likes to see a Bill go from the Seanad that allows people to question why provisions on hearsay evidence were allowed pass. We must rely on the Minster of State to address this.
I will explain the position.
Good, because as a Senator I must rely on the Minister of State. Senator Ryan has pointed out that the resources available for research on this matter amount to zero. Given this, it is very difficult for us to try to deal with it.
I disagree with Senators on this matter and there is a strong case for not accepting the amendment. The subsection which it would remove is designed to allow the courts to consider hearsay evidence in the very limited context of applications by rights holders for search warrants in cases where infringements of copyright are feared. This important facility is designed to assist them in upholding their rights, but only as a facility to allow evidence to be brought to the court expeditiously in circumstances where time may be very pressing. For example, there may be goods, such as videos, in a warehouse requiring speedy action.
The provision will not extend to substantive trials of copyright action. That is important. In view of the value of the measure in upholding rights holders' rights, and bearing in mind the legal advice of the Office of the Attorney General that the measure suffers no legal or constitutional infirmity, it is my intention that it will be preserved in the Bill. In view of this, I cannot accept the amendment.
I understand the concerns of Senators about the individual's rights. However, subsection (5) contains a very important safeguard, which we will address again in the next amendment. Suppose, for example, action is taken, the court shows that everything is in order and that there was no infringement. In such circumstances the people who own the premises that is searched can take an action under the subsection. In providing for this measure I was very concerned to ensure the subsequent measure was in place to protect individuals in cases where hearsay evidence interferes with their rights. This is important in addressing Senator Ryan's concerns and the argument will also hold for the next amendment.
Mr. Ryan
Suppose my television was stolen, I could seek a search warrant from a court because somebody told me Johnny Murphy had it in his living room. We would say that was a nonsense provision, it is disproportionate to the offence. This is not just about 1,000 or 2,000 videos; it could be two. It could involve somebody who heard that a child down the road had two copies of two computer games and had not paid for them. It could just mean that someone heard that somebody else had something. It does not indicate scale, number or proportion. It just says that if they think – which is what hearsay evidence is – somebody has a copy, they can obtain a search warrant and the court cannot rule out hearsay evidence. They do not need to have reasonable suspicion; hearsay evidence is acceptable. This is entirely disproportionate.
A figure for the scale of copyright abuse could have been included, in other words, it could be of considerable value or considerable numbers of copies could be involved. This power, however, applies anywhere there is a belief that an infringing copy is kept and it is entirely disproportionate. It would be crazy to allow citizens to go into court on hearsay evidence and get a search warrant to search their neighbour's house if they suspected that was where their stolen television was. This provision is entirely disproportionate and I am disappointed that a liberal member of Fianna Fáil is standing over it.
I am trying to deal with the reality. We are talking about a tip-off to the Garda and people's rights being infringed. The Senator knows well that the Garda has raided premises and warehouses containing all sorts of illegal copies of videos and so on. We are not talking about Johnny's television being stolen and someone suspecting who has it. I also make the point that the court is not obliged to accept hearsay. This is a "may" provision; it includes the word "may". There is a protective measure whereby an owner whose premises is wrongfully raided by the Garda can apply for damages under subsection (5). I am trying to deal with the real world and it is my duty as Minister of State to protect people's rights in cases where infringing copies are made, held in storage in certain locations and the Garda is given a tip-off. I think this is solid, practical legislation. Therefore I cannot accept the amendment.
Is the amendment being pressed?
Mr. Ryan
Yes.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Mr. Ryan
I move amendment No. 70:
In page 74, to delete lines 7 to 9.
The amendment proposes to delete section 127(4). The subsection reads:
A witness or deponent shall not be obliged to indicate the source of the information upon which that witness formed the belief that material may be found in a particular location.
This is not discretionary. It does not provide that the court can accept that they might not have to. It says explicitly that a witness shall not be obliged to indicate the source to the courts. Therefore, one can swear that one believes material is kept at a certain location but there is no obligation to indicate how one knows.
Let us put this in a general context. To say that a member of the Garda Síochána shall not be obliged to indicate the source of information would cause quite legitimate concerns about such additional powers. This is far more serious than the Minister of State seems to appreciate. It is quite a departure from the normal rules under which orders are made. It leads to the next section which is profoundly revolting in its assault on the normal practices of a civilised society. We must remember this is a society which will not guarantee a journalist the right to confidentiality of sources and which has imprisoned journalists for refusing to disclose their sources of information for a newspaper article, not for a sworn deposition. It is entirely disproportionate that a society which says that journalists can go to jail because they will not disclose their sources can say that people can go into court under oath and not be asked where they got their information.
I have been considering the previous amendments and the wording "the court may or may not accept the question of hearsay". Will the Minister agree that the wording "A witness or deponent may not be obliged" would be better than the words "shall not be obliged"? It is understandable that there might be a problem regarding the disclosure of information because we all know what the reality is. I agree with Senator Ryan that this is a serious matter because the legislation allows that one shall not be obliged to indicate the source of information. There must be a way around this issue and the compromise would be to include the wording "the witness or deponent may not be obliged".
I second the amendment. It would be helpful to know whether there is other legislation whereby a witness can go into court and act like this?
The only other legislation I can think of at the moment which might have relevance to this debate is the whistle-blowers' charter on fraud which is being put forward by Deputy Rabbitte, a member of Senator Ryan's party, in the other House. It is a Private Members' Bill on a whistle-blowers' charter which gives protection to employees in companies regarding information. It has a similar objective to this provision. I thank Senators for the amendment.
This section has a limited objective. In reply to Senator Cregan, the use of the word "may" would create doubt regarding the certainty of the legislation from the point of view of the person giving the information and would render the law useless. Therefore, there must be a degree of clarity. This is why I believe the word "shall" should remain. It has the limited objective of allowing copyright plaintiffs to apply for search warrants for certain offending materials without revealing the name or names of the persons whose information provided the basis for their belief that such materials could be found on the particular premises. It does not compel the court to take a particular view of the weight of such evidence in particular cases, nor does it extend to the trial of substantive actions on breach of copyright which might follow the discovery of infringing materials on a premises. In any event, failure to find such materials would certainly rule out any possibility of a successful action for breach of copyright following on the search and could expose copyright owners who have negligently applied for such search warrants to the risk of legal action on the part of the object of the warrant. I made the point earlier that there are safeguards included and I was careful to ensure they were included.
This measure has been represented to the Government as vitally necessary if many copyright owners are to be able to make the first step in getting the evidence necessary to vindicate their rights in the event of infringement. It is especially important in the case of commercial concerns where a principled wish on the part of an employee to uphold the law against infringement may be frustrated by the fear of dismissal in the event of his or her name being revealed. In fact these very arguments have been made by the Senator's colleague, Deputy Rabbitte, in the other House in relation to the whistle-blowers' charter. Given that the section would in no way allow an action for breach of copyright to be sustained on the basis of hearsay evidence based on anonymous information and that actual evidence of infringement would be needed to sustain such an action, I am convinced that no injustice is effected by this section and that, on the contrary, its presence is entirely necessary to ensure that the regime of remedies against copyright infringement contained in the Bill is fully effective. I can assure Senators that I have taken most careful legal advice on this matter from the Office of the Attorney General and that the advice is consistent with my view on the matter. I think there is a real issue in the real world which needs to be addressed and I remind Senator Ryan that one of his colleagues is looking at this issue in relation to fraud and is taking the same kind of approach.
Mr. Ryan
The approach my colleague is taking in the other House is of no great concern to me, but I suspect the similarities are more in the Minister's imagination than in reality. However, let us accept for the time being what the Minister has said, because it does not trouble me. I have spent most of my life in the House resisting the view that draconian powers are the solution to any crime and I think most evidence shows that the level of crime increases or decreases irrespective of whether there are draconian measures in place.
It is important to say that this is relevant to the next section. I do not believe that it makes good law to give a witness the right not to give the source of information. We are talking about a person seeking to do something on behalf of somebody else, namely, the right to search. Of course it is true that an aggrieved party can seek damages, but let us remember that if somebody owning copyright decided to use this section to seek the right to search, and if they found any material in breach of copyright – let us all be a little careful about the material which infringes copyright – then we would enter very dangerous territory. If two photocopies of something are found in somebody's possession, even if that is not the material initially being sought, an aggrieved party would have great difficulty going to court to seek damages, even if not much beyond that was found. The chances of the deponent or applicant being penalised are very remote. I do not agree with the idea that in order to protect owners of copyright we should breach one of the fundamental principles of our legal system. Our reluctance over 20 years to say that a journalist in court does not have to reveal sources contrasts painfully with our commitment to press freedom and what in this case are essentially the rights of property.
Question put: "That the words proposed to be deleted stand".
Tá
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam. |
Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Moylan, Pat.Ó Murchú, Labhrás. |
Níl
|
Coghlan, Paul.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe. Hayes, Tom.Henry, Mary. |
Jackman, Mary.McDonagh, Jarlath.Norris, David.O'Meara, Kathleen.Ross, Shane.Ryan, Brendan. |
Tellers: Tá, Senators T.Fitzgerald and Gibbons; Níl, Senators O'Meara and Ryan.
Question declared carried.
Amendment declared lost.
Mr. Ryan
I move amendment No. 71:
In page 74, to delete lines 17 to 50 and in page 75, to delete lines 1 to 23.
If I was annoyed by the previous subsection on which we have just voted, I am infuriated by this provision. If it is impracticable for the owner of the copyright in a work to apply to the District Court for an order under the previous section, a copy, article or device referred to in that section may be seized and detained by the copyright owner or a designated representative thereof where the copy, article or device is found being hawked, carried about or marketed.
If I have a copyright of something and believe Senator Coghlan has in his possession or is selling an illegitimate copy, I can grab it from him.
Force may not be used.
Mr. Ryan
The subsection states that force may not be used. This is a serious section. I have had considerable interest over the years in dealing with the Committee Stages of legislation, including legislation involving the security of the State, yet I am not aware of an equivalent provision to this, which specifically gives to an owner the right to take something without any process of law. The Garda must be notified but their permission is not required. The owner may say, "I think that is mine. Give it to me." We could have a semantic discussion on how to seize something without using force. The section states that material "may be seized and detained by the copyright owner."
I know all the exclusions. We should be grateful that they cannot walk into somebody's normal place of work and grab it there and that they cannot use force, but I can, for example, demand of Senator Ó Murchú, with the backing of the law, that he give me what is mine and I have the force of law behind me. There is no defence, no exclusion to give Senator Ó Murchú the right to refuse it. I believe there is no such provision else where in law. I know it is contained in the Trademarks Bill but that is a slightly different question. I do not care what the advice from the Attorney General's office is – I do not believe that under our Constitution, based as it is on the rule of law and due process, not property or ownership or power, that you could ever give people the right to ignore due process for reasons of impracticability. If you pursue this, if my neighbour has something that I think is mine I can take it from him. If somebody steals my television and I see a person walking along the street, I may say, "That is my television. Give it back to me." I do not have to call a garda and say I suspect that is my television and then an independent figure in the Garda Síochána investigates whether my complaint is valid. I do not have to prove this to anybody. I do not have to explain this to anybody. I do not have to justify it in advance to anybody. I can simply say, "Give it to me." This is the first thing that is wrong with this.
The second thing that is wrong with this is that by contrast with the previous section there is no penalty, no specific reference to an aggrieved party being entitled to damages. There is a reference to rules of court which shall be made under this section and there is an implicit reference to the previous section. It is not at all clear that an aggrieved party would be able to claim damages. Secondly, if somebody takes something from me that they do not own, that is theft. The least there could be in a section like this is a provision that abuse of this section would be a criminal offence subject to severe penalties. I have an amendment to that effect, assuming we do not make progress on this one.
I look forward to a detailed justification from the Minister of what I believe to be a quite unprecedented and dangerous exception to the normal course of law, which is to say that the owner of a piece of property i.e. copyright, where it is not practicable in his or her judgment to go to the courts, can take that back without any due process beyond notifying the Garda. There are circumstances under which it cannot be done. They cannot enter a person's normal place of business, but the basic principle is that a property owner can now grab back what he or she believes to be their own without any due process. I find that quite offensive and unnecessary. It comes back to something I have discovered as I have read this Bill, a degree of proscription about how our affairs are ordered, a degree of draconian proscription that I have not seen in any other similar legislation. One keeps on wondering about the influence of the property owners. Landowners do not have powers like this. Owners of built property do not have powers like this. Car owners and consumer goods owners do not have any rights like this. Only copyright owners are to have them.
I would love to believe that this is out of profound concern for the poor misfortunate strugg ling musician down the country whose rights are being infringed. It is about multi-nationals and their sense of grievance that they cannot get every possible penny out of what is their copyright. That is their business and it is a legitimate concern, but it is wrong for a sovereign State to decide to subvert one of the basic laws on the rights of a citizen which is always to be dealt with by due process. That is a basic right and, under our Constitution, an inalienable right which the State cannot take away. Even under the Offences Against the State Act or the famous Emergency Powers Act that we used to have, there were fundamental rights that could not be taken away. To suggest that you can put into an Act a section which provides that the person who has certain property in their possession has no right to hold on to it if somebody claims that their copyright is being infringed is both nonsense and is quite subversive of the spirit of the Constitution. I commend the amendment.
I second the amendment. Many is the person, and myself I had better include, who has had goods stolen would think that this was a pretty good idea, that we could all go around searching for our goods which had been taken from us and get them back in this manner. Is it really wise to have this specifically apply to this copyright situation? I can understand the rage there must be if people's goods are taken, but surely we have to have this applying in the same manner as to other stolen property. It seems Senator Ryan has made a very good case for the removal of this section.
The motivation behind this is to deal with the whole question of copyright piracy and as far as I am concerned as Minister my concern is to protect the artists, some struggling and others perhaps not struggling as much as others. There is an issue to be dealt with. I have listened to the comments made by both Senators and in particular Senator Ryan. He has raised an important subject and one in particular that struck me is the question of the aggrieved party. I have noted that there was a protection which I referred to in subsection (5) in the last section which is not here. That needs to be looked at. It proves there is value in these discussions and debates but I will give the legal advice I have.
There is an issue to be dealt with regarding the level of street piracy. We all know of artists whose rights are being seriously eroded by this practice. The question is how we deal with this. Obviously the legislation tries to do that That is where we are coming from. It does convey limited rights on copyright owners to seize certain infringing items in circumstances where it would be impracticable for him or her to apply for the appropriate court order. That is the first point I would make. It is a measure designed essentially to help address the problem posed by what we call the lower level of copyright pirate in the retail end of the business who will not be inclined to wait obligingly in one place for a District Court process to be instituted against him. This is the reason for the inclusion of this section.
The rights are, in fact, limited. Subsection (6) specifically prevents seizure under this section at the permanent or regular place of business of the alleged infringer and specifically rules out the use of force by the rights owner. That is very important. The Senator is right to highlight the need to address that situation.
Senator Ryan also mentioned legal advice. On balance, the section has value in addressing the problem of retail or street pirates. There are limitations but the section is constitutionally sound as far as my legal advice is concerned. I propose to retain the section but I will monitor its operation and take corrective action should it prove to be unsatisfactory. Having listened to the Senator, I should also examine the issue of the aggrieved party and I am prepared to do so. The Senator is correct to highlight it. I intend to have the matter investigated with regard to the protection that exists in the previous section which is not included in this section. That thorough examination will be done in the next few days.
Mr. Ryan
We live in a society in which Supreme Court judges issue injunctions in their homes late on Saturday night if it is necessary. The circumstances under which it is impractical to get a court order are extremely hard to envisage.
Second, while I have no problem with the principle of preventing piracy of music, software and so forth, by definition, the people who are pirated are already making an enormous amount of money. They are the people who are in high demand so the loss to them as a result of street piracy, while it should not happen and is wrong, is insignificant. It is not the poor fellow who is trying to flog a few albums at gigs around the country who is pirated by people selling pirate tapes on O'Connell Bridge. It is the big names, the people in high demand.
I agree that piracy is a breach of their rights and that it should be dealt with. However, it should be dealt with by deeming the sale of pirated merchandise a criminal offence to be dealt with by the Garda. That is the simplest method. If a garda suspects that somebody flogging tapes on O'Connell Bridge is selling illegal copies, it should be a criminal offence to be dealt with under the criminal law using due process. Similarly, if somebody tried to sell a piece of property to me which belonged to Senator Coghlan, he would be guilty of fraud by purporting to own something that was not his and he can be dealt with as a criminal under the fraud laws.
This section is entirely disproportionate. I am glad the Minister recognises the case of the aggrieved party. The reason the aggrieved party was not included – consciously or otherwise – is that everybody knows the type of people for whom this section is intended will not go to court and are not the type to assert their legal rights for a variety of reasons. However, that does not get away from the issue. It is immaterial who is excluded from due process because whoever it is, the person is a citizen of the State under the Constitution.
I would love, although I will never get the chance, to hear the full advice, not a selective reading of it, of the Office of the Attorney General on this section. I confidently predict that if this section is ever enforced and is brought to the Supreme Court, it will be thrown out. If it goes, as it could, to the European Court of Human Rights it will also be thrown out because it denies the citizen due process. This section is simply a case of me saying to somebody else, "I want what you have and because I claim copyright, you must give it to me". There is no other interpretation. It is a wrong concept and it is wrongly drafted.
I will look at the protective aspect of subsection (5).
Mr. Ryan
I am glad but it is only a detail.
Question put: "That the words proposed to be deleted stand."
Tá
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam. |
Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Moylan, Pat.Ó Murchú, Labhrás. |
Níl
|
Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Costello, Joe.Cregan, Denis (Dino).Doyle, Joe.Hayes, Maurice. |
Henry, Mary.Jackman, Mary.McDonagh, Jarlath.Norris, David.O'Meara, Kathleen.Ross, Shane.Ryan, Brendan. |
Tellers: Tá, Senators T. Fitzgerald and Gibbons; Níl, Senators O'Meara and Ryan.
Question declared carried.
Amendment declared lost.
Mr. Ryan
I move amendment No. 72:
In page 79, after line 41, to insert the following:
"(2)In this section ‘loan' means a loan for reward and in particular does not include a loan to a family member or friend for private and domestic use, and ‘lends' shall be construed accordingly."
This amendment has the same principle as an earlier one. I know the Minister shares the view that copying for private use should not be tainted with any suggestion of illegality. Lending for private use should not be tainted with illegality either. I will not vigorously pursue this amendment which I was requested to table by people who are concerned that we are using a sledgehammer to crack a nut. We should make it clear that when we talk about a loan we are talking about a loan for reward. Some of the Minister's colleagues, who are less kind hearted, would have great fun asking me why my previous amendment referred to "friends". It is the type of question I enjoy asking Ministers when they do it in their legislation.
I second the amendment. The Minister is sympathetic to what Senator Ryan is trying to do. I would be grateful if he would accept this amendment to make it clear that we are only interested in commercial activities, not copying for family or friend.
I thank the Senators for tabling this amendment. They can be assured we are at one as regards the need for clarity on private use. This amendment is not necessary to achieve the understandable purpose which underlies it. The specific reference to the legally imprecise term "friend" could open the way to unacceptable abuse. The concept of a loan for reward is essentially contradictory in terms of this Bill. The fact the transaction was for reward would in effect make it rental rather than lending. I presume the Senator will not press the amendment to a vote.
Mr. Ryan
The Minister should not make presumptions.
The amendment is not necessary. What the Senator wants to achieve will be achieved in the Bill.
Mr. Ryan
The only problem is that many of these issues were raised on Committee Stage. It is annoying that we have spent months discussing this Bill and the Minister has spent years in a process of consultation and deliberation, yet there still seems to be a considerable level of uncertainty about many of the details.
I have made my position clear.
Amendment, by leave, withdrawn.
I ask the Chair to clarify the arrangements for a break. The House has sat continuously since 2.30 p.m.
There were no arrangements made on the Order of Business, which was agreed.
The absent Leader stated he would—
Acting Chairman
Does the Senator know he is out of order?
I did not know that. Can I move an amendment to the Order of Business?
Acting Chairman
No. The Order of Business was agreed.
I call a quorum.
Notice taken that 12 Members were not present; House counted and 12 Members being present,
Mr. Ryan
I move amendment No. 73:
In page 81, between lines 11 and 12, to insert the following:
136.–A person who, for monetary gain, makes a claim to enjoy a right under this Act which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine not exceeding £10,000,000 or to both."
An astonishing aspect of this section on enforcement and infringements is that it grants draconian powers. It introduces a degree of allowance of hearsay evidence which is dangerous and perhaps unprecedented. I already mentioned the decision not to oblige indication of sources. I raised my objection to and we have voted on the draconian powers of seizure. However, there is nothing to suggest that a person who, maliciously and for monetary gain, abuses those powers would pay a penalty other than through the civil courts – even that is patchy and requires clarification.
I will not insist on the details of the penalties suggested in my amendment. However, if such a scale of unprecedented powers is to be granted, there must be a balanced penalty for abuse of those powers. Members of the Garda Síochána can be disciplined up to and including suspension and removal from office for abuse of some powers in this Bill, including powers of search or seizure. We accept that is correct because of the powers granted to the Garda who are the law enforcers. We are granting quasi-police powers to copyright owners and the least we should do to balance that is to insist that a person who, for monetary gain, makes a claim to enjoy a right under this Act, which is, and which they know or have reason to believe is, false, shall be guilty of an offence. It is not particularly draconian as we must be satisfied the person knows about it and is doing it for monetary gain. In those circumstances any abuse of those powers should be penalised and identified as a criminal offence.
Senator Ryan has made a very good point that to counterbalance the serious penalties for those who infringe copyright, this provision should exist for a false claim being made.
I thank the Senator for suggesting the introduction of a criminal sanction for false claims of copyright. It is a good idea which should be pursued. However, the £10 million penalty is excessive. Senators stressed the importance of dealing with this matter during the debate on the Intellectual Property (Miscellaneous Provisions) Act in the House last year. I am willing to consider the idea behind this amendment but I cannot accept the specific proposal of a £10 million penalty, which is excessive, even for such a heinous crime.
Mr. Ryan
I am grateful for the Minister's positive response and I will not press the amendment, despite my inclination to be awkward this evening. I accept that the penalties seem great, however, the sort of organisations which might do this need to realise that they must have real evidence and justification. They need a deterrent of this scale. Those most affected by deterring sentences rarely end up being penalised. However, I will not argue with the Minister of State about the scale of penalties if he is prepared to consider a significant penal sanction. It must be significant. If he is prepared to consider it, it would be churlish to pursue the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 74 and 94 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 74:
In page 81, to delete lines 25 to 27.
I propose these amendments on the advice of the Attorney General's office. Sections 136 (1) and 244 (1) provide that a court may make an order for the delivery of infringing copies etc. in circumstances where the court is satisfied that at the time of the arrest or charge, certain conditions apply. Sections 136 (2) and 244 (2) outline the circumstances in which a person shall be deemed to be charged with an offence. However, the Attorney General's office holds the view that Sections 136(2) and 244(2) are not required, as it is sufficient to state "at the time of the arrest or charge". The further clarification in the subsections is unnecessary as the same is reasonably well understood. According to the Attorney General it is unnecessary and I propose to amend it.
Acting Chairman
Does Senator Ryan wish to comment on amendment No. 75?
Mr. Ryan
I am disappointed because my amendment was a legally correct modification. One cannot be served with an indictment, one can only be arraigned on indictment. My amendment now falls which is the reason I take this opportunity to make the point.
The Attorney General's office seems to have eased up a bit and I am glad the Minister of State is introducing this amendment.
Amendment agreed to.
Amendment No. 75 not moved.
Mr. Ryan
I move amendment No. 76:
In page 84, line 31, after "force" to insert "and has been certified as bona fide and in accordance with this Act by the Revenue Commissioners”.
This amendment concerns provisions to prevent the importation of infringing copies. I understand it would be better, in addition to stating that a person "requests the Revenue Commissioners to treat those copies, articles or devices as prohibited goods", to insert after "force" in line 31, "and has been certified as bona fide and in accordance with this Act by the Revenue Commissioners” in order to ensure the notice is a valid notice. We are granting considerable powers.
I second the amendment.
I am grateful to the Senator for the suggestion which I understand is intended as a safeguard to ensure section 140 operates transparently and effectively. Since the Committee Stage, I have consulted the Office of the Attorney General and the Revenue Commissioners on the legal and practical implications of acceptance of this amendment. Pending their reply I am unable to accept the amendment. I accept Senator Ryan's aim but I must receive the view of the Revenue Commissioners. I am sorry and appreciate the Senator may be amazed as there has been plenty of time. However, I am awaiting that response and as soon I receive it I will be in a better position to reply.
Mr. Ryan
It is not only in copyright law that we need efficiency. If the Office of the Revenue Commissioners and others cannot offer advice to the Government on legislation brought before a House of the Oireachtas within four months, we have a bigger problem. If the Revenue Commissioners are still so occupied with other matters that they cannot sort out this matter, perhaps the powers should be given to another body. One wonders about their choices. They recently carried out a diligent audit of disabled drivers to ensure they were not abusing the system. The targets they choose are strange. Perhaps if they left disabled drivers alone they would have more time to give the Minister the advice he is seeking.
Obviously I will ask my officials to try to expedite the response. I am at one with the Senator in trying to clarify this section. I cannot accept the amendment.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 77, 95 and 100 are cognate and may be discussed together. Is that agreed? Agreed.
Government amendment No. 77:
In page 86, line 42, after "that" to insert "operator,".
Sections 145, 152 and 326 provide for the reference of licensing schemes in respect of copyright performers' property rights and database rights to the Controller of Patents, Designs and Trademarks, in cases where a dispute arises with respect to the scheme between the operator of the scheme and a person who claims that he or she requires a licence in the case of a description to which the scheme applies or an organisation claiming to be representative of such persons. As currently drafted, in cases of dispute only that person or organisation may refer the scheme to the controller. However, for reasons of equity, where a dispute arises the operator of the scheme should also be able to refer the scheme to the controller so the dispute may be resolved. Accordingly, I am proposing this amendment to allow for such referral by the operators of licensing schemes.
Amendment agreed to.
Acting Chairman
Amendments Nos. 78, 96 and 101 are cognate and may be discussed together. Is that agreed? Agreed.
Government amendment No. 78:
In page 100, between lines 3 and 4, to insert the following:
"(e)details of the scheme;".
As I previously explained, one area of the relations between collecting societies and yielders of copyright material which can cause difficulties is the problem often experienced by the latter group in obtaining information on the former. This is why I am providing in sections 168, 264 and 338 for the establishment of registers in respect of copyright licensing bodies, performers property rights' licensing bodies and database rights licensing bodies. These registers which will be kept by the Controller of Patents, Designs and Trademarks will provide yielders of copyright materials and the public with easy access to basic information on registered societies, including the names of their officers, the classes of rights holders which they represent and the scales of charges which they apply. I am also proposing that the details of the scheme be added to this information. Such an addition is necessary in the interests of transparency. These issues were raised by Members on previous Stages.
Amendment agreed to.
Mr. Ryan
I move amendment No. 79:
In page 104, line 1, to delete "125" and substitute "1".
When I raised this on Committee Stage and the Minister appeared to be as surprised as other Members at the claim that Government copyright in a work shall expire, not after 25, 50 or 70 years but 125 years. I have waited with bated breath for the Minister to explain why Government copyright must last for 125 years when for mere mortals, film producers, writers and artists, it lasts 75 years at most. I have deliberately gone to the other extreme as I do not believe Governments should make too much of an issue of copyright. My colleagues and I have put down other amendments to make this more explicit. Government should use separate legislation to preserve the integrity of its publications to ensure the moral rights of Government and the Oireachtas are not interfered with so material is not distorted, misused or used for commercial purposes. Beyond that, Government publications ought to be, as far as possible, available to be copied and accessible. I notice there is no claim to copyright on this Bill. Will that change when this legislation is passed?
The Government has decided to forfeit its rights.
Mr. Ryan
The figure of 125 years is probably the most ridiculous provision in this Bill, although there is a number of ridiculous provisions.
I second the amendment. I will not delay the Minister another moment from explaining the longevity of this copyright.
I am happy to debate this issue again. The figure is actually 55 years plus 70. However, Senator Ryan has raised an important matter. We are reconsidering the duration of Government and Oireachtas copyright on foot of the concerns raised by Senators on Committee Stage. Unfortunately, we have not drafted a counter amendment. However, I intend to put down a counter amendment before the other House. It is another outstanding issue. However, I will be able to give the Senator some indication of our thinking and I would be grateful if he would refrain from pressing this amendment on that basis.
The figure of 125 years was originally adopted in the United Kingdom legislation and appears to have been an attempt to duplicate as far as possible the normal duration of copyright attaching to an author, who is a natural person, that is, life plus 70 years after death. I agree with Senator Ryan that this appears extravagant for Government copyright. There may be legal and practical constraints in reducing duration to one year. Nonetheless, I will take account of the Senator's views in calculating the final figure. As I will be stating on the next amendment, in 1997, the Government decided to forfeit its copyright. The Senator has further ideas on this and I will be positive in my response.
Mr. Ryan
I am grateful to the Minister for his response. It is four months since I raised this issue, to the considerable astonishment of the House. I happened to be looking for something else when I saw it. It is hard to elicit astonishment on Committee Stage because most people, apart from those involved, are barely listening. However, this issue produced that response. I am not satisfied to wait until the Minister gets around to dealing with it.
The figure will probably be 50 years.
Mr. Ryan
I thought we were abolishing Government copyright. However, we are now being told it will be 50 years. I do not accept the philosophy behind it and I will not withdraw my amendment.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Acting Chairman
Amendment Nos. 80 and 85 are cognate and may be discussed together. Is that agreed? Agreed.
Mr. Ryan
I move amendment No. 80:
In page 104, line 17, to delete "Government" and substitute "Houses of the Oireachtas".
There is a fundamental question here about who owns legislation. Once a Bill is put before the Houses of Oireachtas, it is the property of the Houses of the Oireachtas. A Bill is only passed by the Oireachtas – it is not enacted by the Government. The Government will have a residual power under the Bill, as to when to bring the Bill into force. However, it is a complete constitutional misunderstanding to vest copyright in Government Bills or enactments in the Government. The Government does not own them. Although it often surprises the Government to hear this, it is actually an agent of the Houses of the Oireachtas, given its powers under the Constitution by the Houses of the Oireachtas and accountable to the Houses of the Oireachtas, not superior to them. However, we understand the reality, about which the Minister has been talking a great deal. Neither Bills nor enactments are the property of Government. Therefore, if there must be copyright – and I have reservations about the whole issue since we have to preserve the integrity of these and ensure they are not used commercially in an unacceptable fashion – then it should be vested in the Houses of the Oireachtas, not in the Government.
This point was made earlier in this debate. In recognition of the good arguments made on the Opposition side of the House I hope that the Minister will be in a position to accept this amendment. The point has been well made.
I thank Senators for the comments on this subject. I am happy to inform them that I accept their amendment.
This section, as currently drafted, vests the copyright of any enactment in the Government and clarifies the position regarding copyright interests, in relation to Acts and Bills in particular. The Government was chosen as being the copyright owner in such circumstances not for any reason that might be construed as derogatory to the Houses of the Oireachtas but largely as a matter of convenience, particularly in relation to the assignment of the copyright interest in Bills and Acts. The acceptance of these amendments will mean that copyright in any Bill or Act will vest in the Houses of the Oireachtas. It is important that these rights can be dealt with effectively by their rights holders, that is the Houses of the Oireachtas. As I said earlier, the Government has exercised these rights to date under the terms of section 51 of the Copyright Act, 1963. The previous Government, in the interest of promoting public access to legislative material, decided to waive its rights to copyright royalties on an informal basis and allow free copying of Acts of the Oireachtas and statutory instruments without restriction. This is an initiative that this Government has continued.
I assume these amendments will be pressed. Therefore, I am happy to accept them. I have no doubt that the House, acting through the means set out in section 184 of this Bill, will continue to exercise this right in a manner which is effective and conducive to securing the maximum degree of public access to legislative material. I thank Senator Ryan for raising this matter.
Mr. Ryan
As Senator Henry said last week, my cup runneth over. I thank the Minister for accepting my amendment.
Amendment agreed to.
Acting Chairman
Amendments Nos. 81 and 83 are cognate and may be taken together by agreement.
Mr. Ryan
I move amendment No. 81:
In page 104, line 20, to delete "50" and substitute "1".
This amendment also relates to Oireachtas copyright. One of the peculiar niceties of life is that while Government copyright expires after 125 years, mere Oireachtas copyright will expire in 50 years. My amendment suggests that it should be reduced to one year.
I second the amendment. It is logical to dispense with the term "50 years".
My answer will probably be the same as the one I gave on the last occasion. I ask Senator Ryan not to press his amendment and I assure him that I will give full weight to his views. The term "50 years" has implications for the TRIPs agreement, etc. This aspect of the Bill is important with regard to royalties, this Copyright Bill and the Government and Houses of the Oireachtas copyright. Therefore, I ask the Senator to allow us some time to finalise this aspect.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 82 and 86 are cognate and may be discussed together by agreement.
Mr. Ryan
I move amendment No. 82:
In page 104, between lines 21 and 22, to insert the following:
"(3)Permission to publish an accurate text of any enactment or part thereof is hereby granted to any person subject only to such conditions as may be imposed for stated reasons in a particular case by resolution of both Houses of the Oireachtas."
My amendment is a direct follow-on – almost inspired on my part – to what the Minister said was the Government's intention. I hope he will accept my amendment. Amendment No. 86 is identical except that it refers to a Bill rather than an enactment. It also gives universal right to copy, subject to whatever rules that the Houses of the Oireachtas draw up.
I second the amendment.
I appreciate the intention of the Senator when tabling these amendments. They reflect the desire, which I hope we all share, to make the materials of legislation and Government available to the widest possible range of users, subject to the minimum level of control. As I have already indicated, I am willing to give the Senator's question on Government and Oireachtas copyright the careful consideration it deserves. However, this Government's policy and its predecessor's has been that users should be allowed to copy Acts of the Oireachtas and statutory instruments in which the Government asserts copyright under the Copyright Act, 1963 in whole or in part, without any payment of royalty. This policy is informal but is no less effective. While specific provisions on Government and Oireachtas copyright, such as those appearing in the present Bill, are necessary to dispel any uncertainty as to where control of these interests lies, we remain willing to debate what is the most proper and convenient balance between Government and Oireachtas copyright. However, I am sure that neither the Government nor the Oireachtas is anxious to reverse the liberal policy regarding the use of legislative material which users of such material have enjoyed under this Government and its predecessor.
I have considered this matter further and come to the conclusion that it would be better to continue with this policy on an informal basis rather than to use rigid legislative provisions. Therefore, I cannot accept this amendment. We are talking about what happens in reality. There is an informal basis which was put in place by the previous Government and this Government is adhering to it. The legal advice I have received is that this is the best way to deal with this issue.
Mr. Ryan
I am unhappy with the Minister's reply. I dislike informal arrangements because they are at the whim of Government and it is too easy to change them. A classic example I can give is the insistence by the previous British Government that they did not need a Freedom of Infor mation Act because they had a code of practice which was flexible and allowed them to say no whenever they wanted to do so. There was also no external body involved. Another example is the Freedom of Information activities of the European Commission and the European Council. They made a sweeping statement, then they were caught out and embarrassed when someone found information. Those people were then told they should not have received that information and the rules were rewritten to reduce the embarrassment.
I have no doubt that if the Freedom of Information Act was operated under the goodwill of this Government, however generous—
We have changed it so that it will be the Houses of the Oireachtas.
Mr. Ryan
The Government cannot decide what can be done by the Houses of the Oireachtas. The Government made a decision about how it would deal with the situation when it held copyright. We have now moved and decided that the copyright will be held by the Houses of the Oireachtas. The Houses of the Oireachtas should not be able to make the decision to charge people for copies of legislation. Therefore, amendments Nos. 82 and 86 are necessary in order to ensure that all the Houses of the Oireachtas can do is decide the process by which copies of Bills and enactments can be provided, not to decide not to do it. We are giving people permission to copy enactments or Bills. The Government's decision has no significance as far as enactments and Bills are concerned because it no longer holds copyright. The Houses of the Oireachtas cannot be given a free hand. We want access and accountability.
Amendment put.
Tá
|
Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Cregan, Denis (Dino).Doyle, Joe.Hayes, Tom.Henry, Mary. |
Jackman, Mary.McDonagh, Jarlath.Norris, David.O'Meara, Kathleen.Ross, Shane.Ryan, Brendan. |
Níl
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, John.Dardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam. |
Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Moylan, Pat.Ó Murchú, Labhrás. |
Tellers: Tá, Senators O'Meara and Ryan; Níl, Senators T.Fitzgerald and Gibbons.
Amendment declared lost.
Amendment No. 83 not moved.
Mr. Ryan
I move amendment No. 84:
In page 104, line 40, after "made" to insert "available to the public".
I am concerned by the way in which Oireachtas is measured. It should really refer to when something is made available to the public rather than when it is made. All of this may be academic if the Minister of State goes in the enlightened direction in which he is going, and the Houses of the Oireachtas pursue the new philosophy of openness. I am moving the amendment simply for consistency in terms of how we define many of these things.
I second the amendment.
I appreciate the Senator's concerns. The amendment relates to page 104, line 40, where the Senator wishes to insert "available to the public" after "made". While it might be largely a technical issue, I should point out that this amendment would involve a major departure from copyright principles which dictate that a copyright duration should normally date from the making of a work. In any event, I am not clear that there would be sufficient practical benefit from such a change in relation to material covered by Oireachtas copyright to justify such a departure from normal principles. Accordingly, I regret that I am not in a position to accept this amendment. Making a work is obviously a very definite position in law, while making it available to the public is obviously something that would happen later. I am simply saying that this would be quite a departure from the copyright principles; therefore I cannot accept the amendment.
Mr. Ryan
I will not argue with the Minister.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 85:
In page 105, line 17, to delete "Government" and substitute "Houses of the Oireachtas"
I second the amendment.
Amendment agreed to.
Mr. Ryan
I move amendment No. 86:
In page 105, between lines 41 and 42, to insert the following:
"(8)Permission to publish an accurate text of any Bill or part thereof is hereby granted to any person subject only to such conditions as may be imposed for stated reasons in a particular case by resolution of both Houses of the Oireachtas.".
I second the amendment.
Amendment put and declared lost.
Government amendment No. 87:
In page 107, to delete lines 14 to 49, and in page 108, to delete lines 1 to 46, and to substitute the following:
"187–(1)The publisher of any book first published in the State after the commencement of this section shall, within one month after the publication, deliver, at his or her own expense, a copy of the book to each of the following–
(a)the authority having control of the National Library of Ireland;
(b)the authority having control of the library of Trinity College, Dublin;
(c)the authority having control of the library of the University of Limerick;
(d)the authority having control of the library of Dublin City University, and
(e)the Board of the British Library,
and four copies of the book for or in accordance with the directions of the authority having control of the National University of Ireland for use in the four constituent universities of that University.
(2)Boards and authorities taking delivery of books under subsection (1) shall give a written receipt for every book delivered to them under that subsection.
(3)The Minister may, on an application of a Board or authority referred to in subsection (1), make regulations exempting from subsection (1) in respect of the Board or authority making the application, publications wholly or mainly in the nature of trade advertisements, or any class of work as may be specified in those regulations, and it shall not be necessary for the publisher of any publication so excepted to deliver the publication to that Board or authority or for such Board or authority to give a receipt unless as respects any particular publication a written demand for the delivery of that work is made by the Board or authority concerned.
(4)The Boards or authorities referred to in subsection (1) may, before delivery of a book is made under subsection (1), request that a book be delivered in a particular form, being one of the forms in which the book is published and the publisher shall deliver it in the form requested.
(5)The publisher of any book first published in the State after the commencement of this section shall, where a demand is made in writing by the authority having control of each of the following libraries–
(a)the Bodleian Library, Oxford,
(b)the University Library, Cambridge
(c)the National Library of Scotland, and
(d)the National Library of Wales,
before the expiration of 12 months after the book is published, deliver within one month after receipt of that written demand or, where the demand were so made before the book was published, within one month after publication, to an address in Dublin named in the demand a copy of that book for, or in accordance with the directions of, that authority.
(6)In the case of an encyclopaedia, newspaper, review, magazine or work published in a series of numbers or parts, the written demand referred to in subsection (5) may include all numbers or parts of the work which may subsequently be published.
(7) A copy of a book delivered to the authority having control of the National Library of Ireland or the Board of the British Library pursuant to this section shall be a copy of the whole book with all maps and illustrations belonging to that book and, subject to subsection (4), finished in the same manner as the copy in that form which is superior in quality to any other copy in that form of the book available.
(8) A copy of a book delivered to any of the authorities referred to in this section, other than those referred to in subsection (7), pursuant to this section, shall be in the form specified by the Board or authority, which shall be one of the forms in which the book has been published, and shall be in like condition as that form of the book.
(9) Where a publisher fails to comply with this section he or she shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.
(10) For the purposes of this section, ‘book' includes every part or division of a book, pamphlet, sheet of letterpress, sheet of music, map, plan, chart or table separately published, but shall not include any second or subsequent edition of a book unless such edition contains additions or alterations either in the letterpress or in the maps, plans, prints, or other engravings belonging thereto.
(11) For the purposes of this section, ‘publication', in relation to a book–
(a)means the issue of copies to the public, and
(b)includes its making available to the public by means of an electronic retrieval system;
and related expressions shall be construed accordingly.".
Amendment No. 87 is grouped with amendments Nos. 88 and 89. Barring certain additions to the list of libraries benefiting and minor technical changes relating to the organisation of the libraries concerned, the provisions in copyright legislation relating to the delivery of books to certain libraries embodied in section 56 of the Copyright Act, 1963, have remained unchanged since the enactment of the Coypright Act, 1911. The existing version of section 187 of the Bill sought to update this text in line with modern copyright principles. On reconsideration, I find myself in agreement with those Senators who raised this matter on Second Stage – that this updating embodies inappropriate strictures that could make the book deposit scheme inoperable.
Amendment No. 87 is designed to restore the position to that obtaining under the 1963 Act, with some small modernisation of the more convoluted and antiquated drafting. Only two related innovations are now proposed – power on the part of the library obtaining delivery of books to specify the form in which a book should be delivered to them, for example, to specify an electronic copy and the addition of the definition of publication for the purpose of this section, which would also include publication by electronic means.
With regard to amendment No. 88, I am of the view that such an amendment would not add greatly either to the clarity or to the effectiveness of the particular subsection in question.
I have two difficulties in relation to amendment No. 89. First, the powers it would give to the Minister are very sweeping in character and, second, the question of extending library deposit requirements to new media is a complex one which, in my view, requires further consideration. Following the enactment of the present Bill I intend to ask my Department to review the book delivery scheme in consultation with other interested Departments. A change on the lines suggested by amendment No. 89 would be appropriate for consideration in that context.
I thank the Minister of State for responding to the representations made to him. This will make things much simpler for those who work under the book deposit scheme. I am very grateful for what the Minister of State has done. I assure him that many of those involved in this area live in south Dublin and will, naturally, be very grateful personally to him.
Amendment agreed to.
Mr. Ryan
I move amendment No. 88:
In page 108, line 40, after "delivered" to insert "and in addition the person shall be liable to be ordered to comply with this section".
I will not press this amendment. I accept the Minister of State's view that it will not provide any additional powers.
Amendment, by leave, withdrawn.
Mr. Ryan
I move amendment No. 89:
In page 108, after line 46, to insert the following:
"(12)The Minister may, by order, extend the provisions of this section to other copyright work.".
I am disappointed that we have yet again come back to the need for further consideration. I do not believe that, at this stage and after all that time, that is acceptable. That amendment was submitted by my colleagues and me nearly a fortnight ago. We could and should have received a better response than "further consideration". I wish to pursue this amendment.
Acting Chairman
Amendment No. 89 has already been discussed with amendments Nos. 87 and 88.
Amendment put.
Tá
|
Coghlan, Paul.Coogan, Fintan.Cosgrave, Liam T.Cregan, Denis (Dino).Hayes, Tom.Henry, Mary.Jackman, Mary. |
McDonagh, Jarlath.Norris, David.O'Meara, Kathleen.O'Toole, Joe.Ross, Shane.Ryan, Brendan. |
Níl
|
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Chambers, Frank.Cox, Margaret.Cregan, JohnDardis, John.Farrell, Willie.Finneran, Michael.Fitzgerald, Liam. |
Fitzgerald, Tom.Gibbons, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Leonard, Ann.Moylan, Pat.Ó Murchú, Labhrás. |
Tellers: Tá, Senators O'Meara and Ryan; Níl, Senators T. Fitzgerald and Gibbons.
Amendment declared lost.
Government amendment No. 90:
In page 110, line 30, after "directly" to insert "or indirectly".
Section 191(4) defines "recording" in relation to a performance as any fixation made directly from the live performance. The purpose of the amendment is to include any fixation made indirectly from a live performance to ensure that "recording" will cover situations where a recording is made from a performance which is transmitted via, for example, the Internet.
Mr. Ryan
Simply because the Minister of State mentioned the Internet and because he will not define it, even though he continually refers to it, I feel obliged to raise this issue. While the Bill contains a saving clause, it is impossible to look at anything substantial on the Internet without effectively recording it. For example, a large excerpt from a video is downloaded, stored and then played. The intricacies of how it works are a mystery to me.
The Internet will bring about the end of copyright as we know it and people will have to find other ways of doing things. I do not disagree with the Minster of State's intent. It is terrible to have people's property taken from them, but the Internet has done that. The ingenuity of the US Defence Department has made it impossible to regulate, which is what it set out to do in the first place.
We have debated the definition of the Internet previously. This amendment is concerned with performances. I understand that when Robbie Williams played at Slane his concert was relayed on the Internet. We are concerned here with an indirect method. In Part III, Chapter I, which deals with performers' rights, we make it clear that when dealing with live performances we deal with direct and indirect.
Amendment agreed to.
Government amendment No. 91:
In page 114, lines 9 and 10, to delete ", (8) and (9)" and substitute "and (8)".
This is technical amendment as there is no subsection (9) in section 197.
Mr. Ryan
I missed that.
Amendment agreed to.
I move amendment No. 92:
In page 122, line 22, to declare "private" where it firstly occurs.
Mr. Ryan
I second the amendment.
Amendment agreed to.
I move amendment No. 93:
In page 123, line 28, to delete "private" where it firstly occurs.
Mr. Ryan
I second the amendment.
Amendment agreed to.
Government amendment No. 94:
In page 134, to delete lines 8 to 11.
Amendment agreed to.
Government amendment No. 95:
In page 138, line 26, after "that" to insert "operator,".
Amendment agreed to.
Government amendment No. 96:
In page 144, between lines 35 and 36, to insert the following
"(e) details of the scheme;".
Amendment agreed to.
Amendments Nos. 97 and 98 not moved.
I move amendment No. 99:
In page 163, line 4, to delete "private" where it firstly occurs.
Mr. Ryan
I second the amendment.
This is the last amendment of the group dealing with research. Those involved in research are very grateful to the Minister of State for accepting them and taking the chance that if commercial research tries to piggy back on the provisions something can be done. This will make a big difference to those involved in the general research field.
Amendment agreed to.
Government amendment No. 100:
In page 168, line 5, after "that" to insert "operator,".
Amendment agreed to.
Government amendment No. 101:
In page 174, between lines 16 and 17, to insert the following:
"(e) details of the scheme;".
Amendment agreed to.
Mr. Ryan
I move amendment No. 102:
In page 177 to delete lines 11 to 13.
This amendment concerns the controller. Its purpose is to delete section 349, which states:
The Controller may, in any case of doubt or difficulty arising in connection with the administration of any of the provisions of this Act, apply to the Attorney General for advice in the matter.
I have served on a number of Oireachtas committees dealing with issues of complex constitutional import in which Governments have said that the advice of the Attorney General was x or y. Yet, when we have asked to see that advice we have been told it was constitutionally impracticable because the Attorney General is the law officer of the Government and his job is to advise the Government and nobody else.
This Bill introduces a provision to give – in this case the controller – the right to get advice from the Attorney General. How many other non-governmental agencies or individuals have the right to get authoritative advice from the Attorney General? I understand that if they exist they are very few. It is a peculiar provision, unusual in legislation, to give an individual who is not a member of the Government or acting on behalf of the Government the right to get direct advice from the Attorney General. That is the reason I tabled the amendment.
I second the amendment.
We had this debate previously and I pointed out that section 349, as currently drafted, provides for the controller to consult the Attorney General on cases of doubt or difficulty arising in connection with the administration of this Act. The Copyright Act, 1963, contains a similar provision. Having considered the matter further, I am of the view that such a provision is necessary and would seem perfectly consistent with the operationally independent status of the controller in such matters. I cannot accept the amendment. The position is being left as obtained in the Copyright Act, 1963 in relation to the controller.
The Senator asked about other agencies. I have not got that information but I will try to obtain it for him.
Mr. Ryan
The Attorney General's office has been a little late with its advice on some of the other sections. Has the Minister received advice from the Attorney General's office that this section is consistent with the constitutional role of the Attorney General? I am convinced it is not. The Minister is opening a huge can of worms because every Oireachtas committee will now have evidence that the Attorney General's advice is not exclusively for the Government. We are now saying, through an Act of the Oireachtas, that one particular individual, the controller, may seek advice from the Attorney General. Why then should every Oireachtas committee seeking advice about legal or constitutional matters not have the same right? Currently, if an Oireachtas committee needs legal advice, it buys it from a barrister, as does everyone else. The reason, we are told, is that the Attorney General's job is to advise the Government only. This section gives the controller an unprecedented right which no Oireachtas committee should have.
There are two issues here. Either the advice Oireachtas committees have always got that the Attorney General cannot give advice to Oireachtas committees because he or she can only advise the Government is right or else the advice that Oireachtas committees have been given is wrong and the Attorney General can give them advice. If this is written into law and is constitutional, every Oireachtas committee, in my opinion, will and should insist that where it needs legal advice, it will obtain the best legal advice from the highest law officer in the State, the Attorney General. It is an either/or situation; either it should not be included or else we are changing a fundamental constitutional arrangement. I am disappointed that the issue has not been addressed by the Minister.
Two issues have been raised here, one of which relates to the view of the Attorney General on this matter. I am informed that the view of the Attorney General is that this is in order, that it stands up and is correct. Second, I must draw a distinction between the position of the controller and that of an Oireachtas committee – they are two very different matters.
Is the amendment being pressed?
Mr. Ryan
Yes.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 105 is consequential on amendment No. 103. Amendments Nos. 103 and 105 will be discussed together, by agreement.
Mr. Ryan
I move amendment No. 103:
In page 181, after line 16, to insert the following:
356.–The amendment of the Act of 1927 effected by section 59 of the Copyright Act, 1963, which amendment is set out for convenience of reference in the Schedule to this section, shall continue to have effect notwithstanding the repeal of the said section 59 by section 10.
SCHEDULE
Section 70 of the Act of 1927 is hereby amended by–
(a)the substitution in subsection (2) of ‘before the expiration of a period of five years and six months from the date of such registration' for 'within the prescribed time before the expiration of the said five years', and
(b)the substitution in subsection (3) of ‘before the expiration of a period of ten years and six months from the date of such registration' for ‘within the prescribed time before the expiration of such second period of five years'.".
Amendment No. 105 refers to the fact that in the Second Schedule, Part I, the Copyright Act, 1963 is to be repealed with the exception of section 59. Section 59 will remain as section 59 of the Copyright Act, 1963. It would be much tidier from a legislative point of view and in the interests of understanding of the law to repeal the entire Act and insert what was formerly section 59 of the 1963 Act in this Bill rather than leave a stray section as the 1963 Act. The proposed amendments seek to simplify the understanding of the law by inserting this section and repealing the entire Copyright Act, 1963.
I second the amendment.
These amendments are essentially technical and concern the need to preserve the effect of section 59 of the Copyright Act, 1963, pending the enactment of comprehensive new legislation on industrial designs which is currently at an early stage of preparation in my Department. However, having considered this matter further, I am of the view that the approach embodied in the Bill as it stands, that is, of doing this in the Schedule dealing with transitional provisions, is entirely effective and appropriate. This is outlined in page 194 of the Bill. Accordingly, I cannot accept the amendments. What is proposed in the Bill is more than adequate
Mr. Ryan
This is very strange. I sometimes wonder why people resist things. This is a technical amendment. The 1963 Act is now floating around with one section as a separate piece of legislation. My amendments seek to repeal the Act and insert the section into the Bill. It may be a transitional arrangement but it would be easier to do it as we have suggested. I counsel the Minister to be wary of advice, particularly from the parliamentary draftsmen, because their capacity to make simple things complicated is one of their great skills.
I thank the Senator for raising this issue. Section 59 will vanish when the new design legislation comes into being. What is proposed in the Bill is less messy.
Amendment, by leave, withdrawn.
Owing to a printing error, amendment No. 104 appears on the list as being tabled by Senator Henry. It is, in fact, a Government amendment.
Government amendment 104:
In page 193, line 16, after "commencement of" to insert "Part V of this Act".
This is a technical amendment to insert the wording "Part V of this Act" which was omitted in error in the text as currently drafted.
Amendment agreed to.
Amendment No. 105 not moved.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
Mr. Ryan
On the motion to pass the Bill, I intended when I arrived here today to call a vote at this stage because of a number of issues relating to the passage of the Bill. One is the unsatisfactory nature of the Government's response to many issues. It is not satisfactory that we are still awaiting advice and decisions on issues. Therefore, there are good reasons to feel that whatever one may think about many of the provisions of the Bill, it is not a satisfactory way for the House to be treated. I assure the Minister that if he says to my colleagues in the other House that he has not yet received the advice of the Attorney General, whatever little irritations we may have shown here will be minuscule and trivial compared to the savaging he will get there. We are quite gentle in this House and it will not be as gentle in the other House. I will ensure that at least one Member of the other House is well briefed about the number of issues on which we have been told advice has not yet been received. Having said that, I appreciate this is complex legislation and I compliment the Minister and his staff on a gargantuan amount of work. I hope our contributions were seen as attempts to be constructive.
I thank the Minister for bringing this Bill before the House and being so thoughtful in accepting our suggestions. I warn the Government side – I say this as a medical practitioner – against allowing the blood sugar of Senators to get too low and I thank Senator Cox for the remedial action she took in the course of the evening. Otherwise we could have been here for another few hours. I thank the Minister of State.
I join in thanking the Minister of State and his staff for their patience and forbearance. I accept that much of the advice they would wish to have has not yet been forthcoming. The Minister of State was good to us in many ways and it is not his fault that the matter is receiving further consideration. He hopes to have the result of that consideration when the Bill is discussed in the other House. I also thank Senator Cox – we are grateful for the provision she made in the absence of the Leader.
Many of the points put during the debate by those on the opposite side of the House were valid and very well put. This legislation has been well debated in the House and has become stronger for the changes made.
I thank the Cathaoirleach and Members of the House for the time and effort that has been put into debating the Bill. When I was given responsibility for this Bill one of the senior officials in the Department said I was going to have one hell of a challenge given that it is the largest item of legislation in the history of the State. I wish to thank my officials who have put much work into the Bill. The personnel of the intellectual property section of the Department has been increasing since I became Minister of State. I wish to say to Senators who have rightly raised questions about the need to have things happen more quickly, that one of the reasons for the pace at which things happen is that the people who have worked closely with me have been really stretched and, to their credit, they have been able to give me as much advice as possible.
There are a few matters we have to sort out and I appreciate the constructive criticisms which have been made in the House. This is my first experience of bringing legislation to the House.
Mr. Ryan
Will the Minister be back?
I hope to be back. I noted what the Senator said on the debate in the other House. I ask the Senator to give my good friend, Deputy Rabbitte, a good briefing on this subject.
I thank the Cathaoirleach and Members and I thank Senator Cox for arranging some refreshments. I noticed that we managed to expedite proceedings dramatically on our return from our sandwiches and tea and coffee. I thought we would be here until midnight and perhaps beyond because I was aware that there was much to be said. I thank Members for their co-operation and their comments. I know it is a better Bill as a result of having been debated in great detail in the Seanad and I look forward to seeing Members again in due course.
Question put and agreed to.
When is it proposed to sit again?
At 10.30 a.m. tomorrow.