Seanad Éireann debate -
Thursday, 11 Dec 2003

Vol. 174 No. 24

Adjournment Matters. - EU Directives.

Dr. Henry

I am delighted the Minister of State is in the House this evening because he has direct responsibility for the topic I want to discuss.

EU Directive 2001/29/EC was brought forward to protect copyright, but the importance of access to the information society was also addressed in the directive. I have some concerns regarding the regulations the Minister is about to introduce. I have seen them in draft form and they may, in some instances, limit access which should be legally available. For example, S.I. No. 406 of 2000 permits organisations to make adapted copies for the disabled, but does not allow the individual disabled person to do so unless it is for research or private study. For example, a blind person cannot put a book on their own scanner and make an aural copy for themselves. A deaf person cannot turn a tape into print. These are one-off copies. They are for their own use but for interest or entertainment. As I said, they can only do it if it is for research or private study. They can obtain copies by going to an organisation. All this seems rather patronising and belittling when disabled people themselves, and we as a society, are encouraging them to be more independent. Surely this can be changed. It will not cost anyone any money.

This is an inadvertent omission. The directive allows a simple change from obsolescent hardware and software to updated forms, but the regulations do not address that point. Rapidly changing technology could allow a situation to arise where it is impossible to access information even though one has permission to do so. I urge the Minister of State to implement the provisions of the directive regarding format shifting to avoid people running into serious trouble accessing information.

Technological protection measures are very important. One must accept the need, therefore, for breaks or inhibitions on access to information, but a supplier must make available a means whereby a legitimate user can avail of their rights to access a document and this is provided under the legislation. The problem, however, is that if the supplier does not comply, there is no means of redress except recourse to the High Court under the regulation. That would be very expensive and time consuming for anyone who already has a legal right to get the information.

Would it not be possible for the person to sign a statutory declaration as to their interests and bona fides before a public notary or peace commissioner? I understand one is allowed to do this in respect of telecommunications licences for deflectors and that this is already possible in the Department.

When we discussed this extensive legislation with the former Minister of State at the Department, Deputy Tom Kitt, we agreed that a blanket obligation on all libraries to charge for copies under the library exemptions was introduced solely for the benefit of libraries. I remember pointing out that it could cost libraries more than they could hope to collect, especially when dealing with students. As I recall, the Minister of State indicated he would remove the obligation when the opportunity arose. I assure the Minister of State present that some libraries are not in a position to enforce the charges and ask him to transform the obligation into an option, now that we have the opportunity to do so. The directive seeks to promote access to the information technology society, while regulating it. I am sure this, rather than a limitation on legal access, is what the Minister of State wants.

Mr. M. Ahern

I thank Senator Henry and other Senators who have made a positive contribution to the development of debate on this important area of the law in the context of debate on what is now the Copyright and Related Rights Act 2000, and on subsequent occasions. Senators will recall that the 2000 Act aimed, among other things, to implement in law the requirements of a number of international agreements affecting copyright law. Among these were new treaties on copyright and rights in performances and phonograms agreed by the member nations of the World Intellectual Property Organisation in 1996. This objective was shared by the directive on copyright in the information society, which is cited under its official reference by Senator Henry in the area of European Community law.

Bearing in mind this common objective, it was possible for the Government to anticipate most of the content of the information society directive in drafting and developing, with the aid of the Houses, the Copyright and Related Rights Act 2000. A minute examination of the relevant sections of the Act in conjunction with the directive, conducted by the Department of Enterprise, Trade and Employment in consultation with the Office of the Attorney General, has confirmed that this important objective was achieved.

As to the upcoming European Communities (Copyright and Related Rights) Regulations 2003, this is a limited legal instrument, designed to make only those changes absolutely necessary to address those few areas in which our efforts to anticipate the final form of the directive in the 2000 Act were not fully successful. The Department is advised by the Office of the Attorney General that the inclusion of any changes extending in the least way beyond this absolute necessity would exceed the powers conveyed by the European Communities Act to make secondary legislation of this sort, a circumstance which, as guardians of the primary legislative process, Members will understand.

In consequence, the scope of the proposed regulations is necessarily local and limited. It principally amends an exception allowing transient or incidental copies of protected materials, such as screen copies of literary works or technical copies made in the course of Internet operations, to be made without infringement of copyright. This essentially technical amendment is required because the current Irish exception is significantly different from the version in the directive and the directive makes this exception mandatory in its current form.

The other important change contained in the proposed regulations will allow the beneficiaries of copyright exceptions, who are unable to access protected materials because of the use by rightsholders of technological protection measures such as encryption, to apply to the courts to obtain the means of access, for example, a smart card. Again, the changes involved are made necessary by substantive differences between the directive and existing Irish provisions.

As to whether the proposed European Communities (Copyright and Related Rights) Regulations 2003 are in line with the spirit of the information society directive, this needs to be considered in the context of the existing background provided by the Copyright and Related Rights Act 2000. Apart from the aim of implementing particular instruments of international law, both the directive and the Act share the objective of putting in place a strong, balanced regime of protection for copyright and related rights at their own levels, systems capable of fully meeting the challenges of the information society. The making of the proposed regulations will be a small but necessary step in ensuring that Ireland maintains its current place among world leaders in the field of copyright protection and, in this regard, is fully in line with the information society directive in spirit and in letter.

I emphasise that neither the enactment of the Copyright and Related Rights Act 2000, nor the making of the proposed 2003 regulation represent any final word in the development of Irish copyright law. The Government claims no monopoly of wisdom on copyright and I am more than happy to consider proposals brought forward by Members of the Oireachtas or other interested parties for future revisions and reforms, remembering always that such changes must be consistent with Ireland's obligations under European Community and international law. For the time being, however, it is imperative that an instrument on the lines of the proposed European Communities (Copyright and Related Rights) Regulations 2003 be made in the immediate future to secure full, basic compliance with the information society directive on the few outstanding points.

I thank Senator Henry for her continuing constructive interest in copyright and related rights matters, and look forward to further positive contributions by Senators towards this ongoing debate, which is of such importance for the prosperity of Ireland in the cultural and the economic spheres.

Dr. Henry

I thank the Minister of State for his reply. In view of his gracious statement that the Government claims no monopoly of wisdom on copyright, perhaps he will re-examine the position, particularly with regard to disabled people, changes from an obsolete to a modern format and the possibility of allowing sworn public declarations to be made before a notary.

The Seanad adjourned at 4.25 p.m. until 11.45 a.m. on Wednesday, 17 December 2003.