Copyright and Related Rights (Amendment) Bill 2004: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

I bring the Copyright and Related Rights (Amendment) Bill 2004 before the House today in order to clarify the position regarding one aspect of the Copyright and Related Rights Act 2000. Intellectual property legislation provides for a complex, multi-layered system of protection for rights holders. As in any other area, the legislator must seek to strike the right balance between, on the one hand, the rights holders who will be seen as the beneficiaries and, on the other, the users. While I use this distinction, there is no doubt that users also benefit from intellectual property legislation, directly or indirectly.

The rights granted are often of immense value and will vary depending on the nature of the intellectual property concerned. For example, it is possible to renew a registered trade mark indefinitely. This recognises the effort required of the holder to make the trade mark valuable to him. On the other hand, with some exceptions, patents have a validity of 20 years only. The patent system is, in a sense, a contract between the State which, representing society, grants a monopoly to the inventor to profit by his invention in return for his making the product available for general use during the term of patent protection and for making the secret public in order that all may exploit it when the patent expires. In a similar way, the rights granted under copyright and related rights legislation are intended to represent a good balance. For example, the duration of copyright will vary depending on the nature of the protection granted.

Whether we read books, listen to music or watch television or films, all these activities which improve the quality of life would not be possible without copyright. While the rights holder may properly benefit, it would be foolish to believe that we would have the kind of publishing and entertainment structure we now enjoy if copyright protection was not in place to underpin it. In accordance with the 2000 Act, copyright subsists in, inter alia, original literary, dramatic, musical and artistic works, sound recordings and films, with certain rights, such as the distribution and reproduction right, given to the holder of the copyright.

The purpose of the Bill is to remove any doubt about section 40 of the Act, which provides that the right of making available a work to the public includes, inter alia, performing, showing or playing a copy of the work in public. In the context of the Act, work means, with some exceptions which do not affect the issue before us today, a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, typographical arrangement of a published edition or an original database, and includes a computer programme.

To what does section 40, in particular the reference to the word "showing", relate? I am satisfied that the reference to "showing" was intended to cover audio-visual works, for example, the showing of a film. It has been suggested, however, that the reference to "showing" effectively created a public exhibition right. It has been suggested to us that the showing of an original protected artwork in the permanent collection of a gallery could be a restricted act. This would mean, for example, that an artist could prevent the "showing" of his or her painting by a gallery. Would that be reasonable?

A case can be made that artists should enjoy a public exhibition right. At one point during the passage of the Copyright and Related Rights Act 2000 through the Oireachtas, consideration was given to the introduction of such a right. This was subsequently dropped, which makes clear that it was not the intention of the Oireachtas to create such a right.

The fact that a gallery may exhibit a work does not mean it holds the copyright. When selling a painting an artist will, in many instances, retain the copyright to secure benefits from any subsequent commercialisation of the work through posters, photographs and so forth. That the painting in question has been sold does not mean the artist has lost the rights to future revenues.

One of the grievances of artists, that they do not benefit from a subsequent sale of their painting possibly at a much higher price than they receive, is being addressed. In September 2001, the European Parliament and the Council adopted Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art, the so-called droit de suite. The transposition date for this directive is 1 January 2006.

On balance, I believe maintaining the status quo is justified. The position is perhaps more clear-cut in the case of literary works, where the main benefits will typically accrue from the publication of the work, from which moneys will flow. While section 40 does not create a public exhibition right, the suggestion that it does or might do creates an element of uncertainty. I am not aware that actual difficulties have arisen but I am conscious that this poses problems for those involved.

If a gallery is approached by a rights holder, should it pay, risk closure or leave the matter to the courts? This is an unsatisfactory position which should be resolved. We had already made clear our intention to make the amendment in an appropriate intellectual property or copyright Bill. Given that many exhibitors may be faced with difficulties in this area, we have decided to make the amendment now, rather than awaiting a suitable intellectual property vehicle.

It may be helpful to give some specific examples of what could be affected. Occasional exhibitions by the National Museum of Ireland could be affected if the museum holds works still in copyright and wished to display such works in the context of a specific exhibition or under a specific theme. Items on display in the National Gallery of Ireland, which are considered important heritage items and form an integral part of the story of the progression of art in Ireland, would also be affected. They include works by Louis le Brocquy, Paul Henry and Jack B. Yeats. In addition, works on display at the Irish Museum of Modern Art, a large percentage of which are by living or recently deceased artists would be affected. The role of IMMA, which incorporates an award winning education and community department, would be severely hampered by any doubt over the existence of an exhibition right. The National Library of Ireland may be inhibited in its plans to place the works of some of Ireland's greatest writers on display. It has been developing new exhibition spaces specifically to facilitate such displays. This would have a negative effect on its efforts to enhance its role as the repository of the world's largest collection of Irish documentary material.

There are many other galleries in this country with established national or international reputations, which could be affected by uncertainty on the question of exhibition rights. Two examples are the Crawford Gallery in Cork and the Hugh Lane Gallery in Dublin where the Francis Bacon exhibition has created great interest.

It is also possible that the application of the exhibition right to literary and artistic works would travel to Ireland from abroad. Once works where copyright is extant arrive in Ireland, often following lengthy and complex negotiations, the copyright owner could take an action against the public or private institution planning to display the works. The effect of such actions against what are often short-term displays would be catastrophic and could lead such institutions to avoid such exhibitions altogether. These are examples of the situations that could arise, although there may not be problems in individual cases. Where the institution purchases the item directly from the rights holder, there should be no problem.

The Bill will provide that, for the avoidance of doubt, no infringement of a right created by this Part of the Copyright and Related Rights Act 2000 in regard to an artistic or literary work occurs by reason of the placing on display the work, or a copy thereof, in a place or premises to which members of the public have access. We do not seek to change the current position. I commend the Bill to the House.

I welcome the Minister of State and thank him for his overview of the need for the legislation. I am pleased to support this short Bill and accept it is an important clarification of copyright law. The urgent need for clarification arises from advice received by the National Library of Ireland, which suggested that one potential effect of section 40(1)(b) of the Copyright and Related Rights Act 2000 is the creation of what is termed an “exhibition right” and that must be removed. As the Minister of State outlined, this would mean the owner of a literary or artistic work would require the permission of the copyright holder before the item could be placed on public display.

This would be a perverse development in law covering literary or artistic works. It would represent a restriction on knowledge, a dilution of access to artistic and literary works and a narrowing of the arteries of learning and knowledge. It would be a retrograde step to restrict the public exhibition of such works of creativity and beauty . The very fact that the question has been raised that such a legal situation may exist calls for immediate clarification. I am, therefore, satisfied the Government is taking reasonable, timely and measured action.

Ireland's extensive literary and artistic heritage is a matter of pride to Irish people and a great asset in attracting visitors to Ireland. Cultural tourism is one of the expanding and dependable elements in our modern tourism mix. I like to think that in "Beauty's home", Killarney, we invented and perfected the concept of marketing and promoting cultural tourism against a backdrop of immense natural beauty and human charm. Cultural tourism is intrinsically Irish, it is not weather dependent and it spans all age groups and socio-economic brackets. The Minister of State and all Members are welcome to visit Killarney as we celebrate Killarney 250. It is 250 years since the foundations of tourism in Ireland were laid and it happened in "Heaven's reflex".

If a doubt remained that copyright holders might have an additional right, it would cast another legal and organisational burden on many exhibition venues, many of which are run on a voluntary basis with minimal funding. It would tend to restrict cultural activities and stultify legitimate public exhibition, information and education. I am, therefore, pleased to support this clarifying amendment by the Government.

I welcome the Minister of State and his senior official to the House. I thank him for introducing the Bill, which removes uncertainty. I look forward to the contribution of Senator Norris. The legislation should be entitled the James Joyce Bill, although it refers to all artists. However, 2004 is the centenary of Bloomsday, which will be celebrated in Ireland and throughout the world. Senator Norris has made a major contribution in terms of bringing the works of James Joyce to a wider audience and a significant industry has evolved.

I met Stephen Joyce, the grandson of James Joyce, in the Irish Embassy in Paris in 1982 when I launched the Joyce stamp. The stamp was controversial but beautiful and I hope to obtain a copy for my learned colleague some time. Concerns were expressed by Joyce's family regarding alleged exploitation of the great man in the exposition and publication of his works. The National Library is mounting a major exhibition and it would be regrettable, from an economic point of view, if there was litigation in this regard, particularly this year. I am delighted the Minister of State has foreseen the possibility.

Joyce's work refers to Dublin, Mullingar and Galway. Jack McCarthy III wrote a book and made a film about Joyce. His work on Joyce will also be covered by the legislation. Joyce's writings have been extremely beneficial to the State. I visited Japan when I was a Minister of State. Japanese people were more knowledgeable about James Joyce than the vast majority of Irish people.

I look forward to the contribution of Senator Norris as it provides him with an opportunity to recite some works of Joyce.

Will that be protected by copyright?

It will be protected by parliamentary privilege and it can be published anywhere the Senator wishes. I wish him every success in his work this year. As a Joycean scholar, I have heard him speaking at many engagements. He brings Joyce alive and makes the occasion special. He has contributed a great deal to getting the message across about Joyce throughout Ireland and the world. He has spoken in New York and elsewhere.

This is good legislation and it is important that the works of other artists should also be exhibited and protected. The legislation covers all exhibition centres and all work that is exhibited. It is also important that the artist should control copyright. Even though he or she may sell a painting or work, if it is reproduced in future publications, their rights will be protected. The Bill is timely and appropriate. It relates primarily to the James Joyce exhibition but it will benefit many others and protects the State's right. I support it and wish the Minister of State well as it passes through the House.

I welcome the Minister of State to the House. I thank Senator Leyden for his flattering comments, which I do not believe I deserve at all. I have always regarded myself as the amateur of Joyce and I certainly have an affection still for the man and his work.

I remember the stamp Senator Leyden, who was then a Minister of State, launched in Paris in 1982 because our little committee suggested to the post office that it should produce a stamp. The one it produced was a line drawing of Joyce by Brancusi at the behest of an interesting Swiss woman, Carola Giedion-Welcker, who was a great friend of Joyce and who, subsequently, became a friend of mine. Brancusi was a very avant garde artist and this was his first attempt. It was recognisably Joyce in a human context. My avant garde friends in Switzerland were furious because they wanted something abstract and they said, “Take it back and do another one”. He produced the image of Joyce as a series of concentric circular fragments and a thing like an exclamation mark and they thought that was more like it. It was the abstract essence of Joyce. It was brought back to Dublin and shown to his father, John Stanislaus, who took one look at it and said, “Ah, poor James, he’s changed a lot”. In any case, it is important to emphasise that this is a general Bill. It is not specifically or directly aimed at one person or interest. However, I note from what I read in the newspaper, not from what the Minister of State said, that we should be grateful to Stephen Joyce for precipitating these circumstances by making an aggressive intervention aimed at the National Library. This highlighted what may be a loophole that goes far beyond the question of the works of James Joyce and also includes the exhibition of artistic works of various kinds that may be inhibited. It could have a very damaging effect. It would be unworthy of this House if the Bill were directed at one person, however much some of us might enjoy it.

At the end of his speech, the Minister of State said the Bill is to remove doubt and that he does not believe it represents a change, but is simply consolidating the position that arises from a very complex area of legislation. He referred to this complexity in his opening remarks. It certainly is complex and that is why we got into this position. It is completely anomalous and very unsatisfactory that James Joyce should have come out of copyright in 1941, stayed out of copyright for three and a half to four years and then, during one of the tidying up operations of the European Union in which it decided to harmonise everything including the shape of bananas and the length of sausages, come back into copyright. Moreover, the Union decided to harmonise upwards in the direction of the French and German copyright laws.

I was made aware of this and informed the then Minister, a very decent and highly intelligent man who was in charge of this area at the time. However, the legislation came through as a kind of statutory instrument about intellectual copyright, which mainly concerned what I would vaguely call micro-technology, computers and the storage of information. The loophole under discussion came in as a codicil to that and it was not noticed. It was a real pity because I felt we could have got a derogation from it. After all, it is absurd that somebody should come out of copyright and then be stuffed back in. The European Union appears to have recognised this because it provided for the so-called window of opportunity, such that if one had a show, book or other work in preparation between the ending of the first copyright period and the artificial reinstatement of the copyright, one could be granted copyright possession.

The artificial reinstatement violates a good legal principal that one should not introduce retrospective legislation. As I stated, the Union tried to cover this by granting copyright possession to anybody who could demonstrate they had works in preparation between the ending and reinstatement of copyright and that is why I am still able to do my show all over the world. The reinstatement represents a very bad principle and we could have got a derogation from it.

The newspaper reports refer to an intervention by Mr. Stephen Joyce. It is an astonishing irony that a man such as James Joyce, who fought for freedom of expression, wanted to reach the widest possible audience by every means at his command and committed himself so totally against censorship throughout his life should now find his works being confined and removed from public gaze and performance and scholarship inhibited by his own estate. This would make him extremely sad. I have encountered this kind of inhibition in respect of a little puppet show for inner city kids, which was free of charge. It was closed down by the operation of the estate. This is like taking lollipops from blind kids; it is disgusting.

I notice there is a recital of the various radio and television programmes that have been cancelled as a result of this kind of threat of injunction. I have experienced this kind of behaviour as the director of the James Joyce Centre. In 1992, we had a World Wide Web broadcast of Ulysses, which used Bloom’s idea of the day continuing around the planet. There was always daylight in some particular place and there were broadcasts from Los Angeles, San Francisco, New York, Dublin, Ankara, Cyprus, China, etc. It was marvellous. Mary Robinson was President at the time and she did a reading, as did I, and it was really lovely to feel we were all linked in this way. We intended to do it again but our sponsors were attacked. However, we were able to demonstrate legally that we should have held copyright because we had our material in preparation during the window of opportunity. Unfortunately, our sponsors included The Irish Times and Irish Distillers. The Irish Times decided to settle because it was going through a rough period and I believe it did not want any more turbulence. Irish Distillers responded as do many insurance companies. Although one may be in the right, the company will decide it is cheaper for it to settle and save itself the bother of fighting its case. If this continues, a body of case law will build up and the remaining seven years of the copyright will be very unpleasant for everybody.

I am very glad this action has been taken. It is general in nature but, specifically, it will act to rescue a very important exhibition being held in our National Library, which was the setting of one episode of Ulysses in which certain aspects of free speech are discussed. It would be appalling to think that over €12 million of taxpayers’ money had been expended, quite correctly, courageously and appropriately, on acquiring this very remarkable collection of material but that the taxpayers were prevented from enjoying it and seeing what they had purchased because of some obscure and arbitrary intervention under the Copyright Act.

It is very important that this material be made available to the public in this way and I am very glad it is being done. It shows a certain stiffening of attitude if one considers the case in which the National Library inherited a very important collection of letters that were rescued by a very courageous figure, the late Paul Léon. His son, Alexis, came to Ireland for the opening of the exhibition. In a remarkable display of pusillanimity, the National Library, despite protestors such as myself, handed over to Stephen Joyce some letters, which he took with him and later claimed he destroyed. It would make me think very carefully before bequeathing material to the National Library if I believed it would hand it over to the caprices and whims of somebody who is, after all, fairly distant in generational terms from the source of that material, such as Stephen Joyce.

James Joyce wrote Ulysses, James Joyce wrote Finnegans Wake, James Joyce wrote A Portrait of the Artist as a Young Man and James Joyce wrote Dubliners. His descendants, quite far down the line, took no part whatever in that process of creation although they have benefited enormously in a financial sense. If anybody talks of profiteering, he should be asked what he made out of works in whose creation he played no part himself.

I was in Monte Carlo at a big conference on Joyce, which was attended by Michael Yeats and his sister. Stephen Joyce interrupted and made a very nasty accusation of profiteering against the Yeats family. In a very dignified way, Michael and his sister responded simply by saying they would not attack Mr. Joyce but that it should be put on the record that they gave their father's manuscripts to the National Library. That was all that needed to be said.

Enough said.

I compliment the Minister of State and the members of his staff who are present from the intellectual property division of the Department of Enterprise, Trade and Employment. Also in attendance are officials from the Department of Arts, Sport and Tourism. I compliment them on their swift and entrepreneurial attitude to preventing any embarrassment at this wonderful exhibition. I know Senator Ross stated this Bill is not specifically about a particular issue——

Senator Ross is not here.

I compliment them on their swift reaction and their entrepreneurial mindset in introducing this Bill to improve the copyright position. Senator Norris has brought the works of James Joyce to the forefront in this country and across the world and we are honoured to have him in the Seanad with us. When Irish people travel abroad the first thing they do is go to an art exhibition. In Paris they go to the Louvre to see the Mona Lisa and in Amsterdam they go to the Van Gough Museum. However, we have tremendously inspirational works on our doorstep here. James Joyce was the leading prose writer in English in the 20th century. Ulysses is critically regarded as one of the greatest novels ever written and the most important literary work of the 20th century. Joyce was one of our own and for such a small country we have made a great contribution to the world. I congratulate the Minister and his modest officials sitting behind him. I know the great work they do on intellectual property.

I thank the Members of the House for their support for the Bill. While having the advantage of being short, it removes a doubt that had potentially serious consequences. As pointed out by Senator Leyden and others, while the Bill will have wide application, it will cover the major exhibition planned for the National Library in June at which Joyce works will be exhibited. This will form the centrepiece of the Bloomsday celebrations. Like Senator Leyden, I wish Senator Norris well during those celebrations.

When we transposed the final elements of the information society directive earlier this year, most provisions had already been transposed by the Copyright and Related Rights Act 2000. We undertook a detailed consultation process. Many of the comments received were more pertinent to the Act than to the transposition. We are now examining these to determine whether further changes to the Act are warranted. Already, we have identified some areas where change would be desirable and I expect we will have another opportunity to discuss copyright in the House. Primary legislation may be required on droit de suite. I thank all those who contributed to the debate.

Question put and agreed to.

When is it proposed to take Committee Stage?


Agreed to take remaining Stages today.