Copyright and Related Rights (Amendment) Bill 2007: Committee Stage.

I welcome the Minister of State, Deputy Michael Ahern, to the House.


I move AmendmentNo. 1:

In page 3, lines 23 and 24, to delete subsection (3) and substitute the following:

"(3) The collective citation "the Local Government Acts 1925 to 2007" includes Part 3.”.

Essentially, this is a drafting amendment. As there is already a Local Government Act 2007, the formulation we have set out in the amendment may be more appropriate.

I am advised that the wording in the Bill as published is clearer and, accordingly, I do not propose to accept this amendment.

Amendment, by leave, withdrawn.

I move AmendmentNo. 2:

In page 3, between lines 24 and 25, to insert the following subsection:

"(4) Section 7 shall come into operation on the enactment of this Act, and the remaining provisions of this Act shall come into operation on the first making of regulations under section 42A of the Principal Act inserted by section 7.”.

The second amendment to this section proposes the inclusion of a new subsection (4) on commencement provisions and suggests, in effect, that the Act should not come into effect until such time as the public lending remuneration scheme is in place. It is, however, crucial that this legislation comes into effect upon enactment. As was made clear from the European Court of Justice decision against the State in January of this year, Ireland is in default of its obligations under the EU directive on rental and lending and it is incumbent on us to comply with the decision as soon as possible. In this regard, our immediate obligation is to provide an exclusive lending right for authors, and this exclusive right will be replaced by a right to remuneration upon the introduction of the public lending remuneration scheme. It is not possible to await that development, given our immediate obligation to authors. For this reason, I cannot accept the amendment. However, I give a commitment to the House that the Department of the Environment, Heritage and Local Government is working towards drafting the regulations to be made under this legislation before the end of the year and that the scheme itself will be in operation from 2009.

The proposed amendment will deal precisely with the Minister's area of concern. The Bill potentially contains a serious flaw in this respect. There is no commencement date specified in the Bill, and in the normal run of events such a Bill commences upon its enactment. This means that the exemption in the principal Act for lending by libraries will be repealed. However, it will take some time for the regulations under section 7 to be made. Unless the Minister can allay our concerns, it seems that libraries will be left in a legal limbo between the time of enactment and the arrival of the regulations. For this reason, we propose a commencement provision which will allow section 7 to operate immediately but will prevent the repeal of the exemption for libraries until the regulations are made. Otherwise, there may be a gap in which libraries are forced to stop lending books until the regulations are made. The Bill in its current form does not appear to address this.

We are in breach of the EU regulation and directive. That was ruled on in the European Court of Justice in January and we must be in compliance with that. I have been advised that what we are doing leaves the libraries in the same position in which they are today and that they will not be liable.

Surely that means the existing exemption libraries have will not apply for the period between the loss of the exemption they currently have and the regulations being published and introduced.

I take the Senator's point about the difference but it is something we can examine. I can ask the parliamentary draftspeople to clarify that position.

That can be addressed further on Report Stage.

Amendment put and declared lost.
Section 1 agreed to.
Sections 2 to 6, inclusive, agreed to.

Amendment No. 3 has been ruled out of order as it involves a potential charge on the Revenue.

Could I challenge that ruling about there being a charge on the Revenue? Why does the substitution of the word "shall" for the word "may" mean there is a charge on the Revenue?

The Chair has ruled under a long-standing rule or practice that this matter is out of order. If the Senator wishes to take it up with the Cathaoirleach, he may do so.

Surely whatever the wording, if the word "may" is left, it will also involve a charge on the Revenue. I do not understand this.

The Cathaoirleach has ruled on this and there is nothing I can do.

Could I help Senator Ross in his difficulty because I understand it very well? The word "shall" is not being accepted and the word "may" is being left. It is not really the Leas-Chathaoirleach's ruling. He has been got at——

It is the Cathaoirleach's ruling.

——by the Government on this and it means it has a leg out. It may not, and probably will not, do it. That is the difference between the words "may" and "shall". We all know that. It has nothing to do with creating a charge.

It involves a potential charge on the Revenue.

I ask Senator Norris to withdraw the accusation that the Chair was got at. The Government did not discuss this matter with the Chair.

I will withdraw the suggestion that the Chair was interfered with malevolently but there is no doubt there is Government influence.

I tabled this amendment. The Minister of State indicated on Second Stage and again today how vital it is that this change is made. He repeated that three times in the House and yet there is a difficulty about making an actual commitment to doing so. There is a preference for saying he might do so. It is ludicrous.

The Leas-Chathaoirleach said it is a long-standing rule. I am a long-standing Member and I do not recall the rule, so it must be very long-standing. Perhaps the Minister of State — I do not expect the Leas-Chathaoirleach to do so because he is bound by the ruling — or someone could explain how one word means a charge on the Revenue while the other one does not. It is utterly ridiculous. This is undoubtedly going to be a charge on the Revenue whatever happens. It is meant to be a charge on the Revenue.

I support Senators Alex White, Ross and Norris. I raised this matter on Second Stage and suggested it would be preferable to insert the word "shall" rather than the word "may" because leaving the word "may" implies a discretion which, as the Minister of State said, we clearly do not have since we are in breach of European law. Like the other Senators, I do not see the problem with this amendment and I support it.

We have been given a history lesson and told this is a long-standing practice. The Government has a long-standing commitment to avoiding implementing this scheme. The only reason it is introducing measures at this stage is that it has been found in breach of European law, as the Minister of State said. It did not implement the public lending right, PLR, scheme in the past.

The Chair has ruled on this and cannot be challenged.

The Leas-Chathaoirleach can invite them to his office.

I accept the Leas-Chathaoirleach's ruling.

The Senator can take up this with the Cathaoirleach who has ruled on the matter.

Could the House get an explanation at some stage?

May I say a few words on this?

Is it on the amendment?

This amendment has been ruled out of order.

The Government made it very clear it was introducing this legislation so quibbling——

This matter has been ruled on by the Cathaoirleach.

I do not know why they are——

The Senator can take up this matter with the Cathaoirleach.

I accept his ruling. I am quite happy because the Bill must be introduced. We have no choice.

The word "may" means a choice.

Amendment No. 3 not moved.

Amendment No. 5 is related to amendment No. 4 and both may be taken together. Is that agreed? Agreed.

I move amendmentNo. 4:

In page 6, between lines 16 and 17, to insert the following subsection:

"(4) The Scheme should be overseen by a board or monitoring authority whose members shall include representatives from the Irish Writers Union and the Irish Copyright Licensing Agency.".

In a way this is an absurdity because we are now talking about moneys and situations which may not exist at all. My amendment puts in place a situation where there should be a board or monitoring authority whose members shall include members of Irish Writers Union and the Irish Copyright Licensing Agency. If the word "may" means the Government is not going to do anything — the track record suggests this is the case — then there will be nothing for the board to oversee. That also affects amendment No. 5.

Amendment No. 5 is about the disbursal of moneys from the scheme. It is an attempt to follow what I am informed is best European practice in terms of the disbursal of moneys and it ensures not more than 10% of the moneys accruing shall be spent on administration. This is an admirable practice. The only charities I support in terms of famine relief and so on have this provision and state "not more than 10%" while some state "not more than 5%". The distinguished gentlemen who briefed me on this matter told me that in the case of the United Kingdom, a jurisdiction we frequently follow in terms of legislation, the sums spent on administration are less. I urge the Government to accept these amendments.

It is unfortunate that these amendments now become hypothetical because of the Government's refusal to accept the word "shall" instead of the word "may". In one sense, one could say Occam's razor comes into action as a philosophical principle and that it is absurd to discuss the hypothetical disposition of non-existent moneys. The moneys do not exist and if we accept the word "may" in its most negative construction instead of the word "shall", they never will. We are living in cloud-cuckoo-land.

Will the Minister of State clearly tell me that he intends to fulfil the spirit of our European undertakings and our requirement to comply with European directives and that he will establish this scheme? Will he give a commitment to establish such a scheme? Will he assure the House the Cathaoirleach's decision, as the Leas-Chathaoirleach said, is technical and is simply because it might create a charge on the Exchequer? Will he give a commitment to the House to implement the scheme? Will he address the substance of the two amendments? Otherwise they become a complete nonsense.

On amendment No. 4, if one invokes the principle of subsidiarity, which is one of the great European catchcries, it is important that the bodies most directly concerned with this area have an advisory or monitoring role. Surely it is appropriate that the Irish Writers Union, which represents the authors who will benefit from the scheme, is represented. What is the point in having an Irish Copyright Licensing Agency if it is not included in this very important section of the legislation? It is vital to the moral integrity of the scheme that the money allocated find its way to the authors and not be swallowed up in administration.

Let me explain to the Minister of State that he was delayed in the anteroom because we were at it hammer and tongs in the House debating the Health Service Executive. A point was made by Members throughout the House, including the honourable gentleman who so valiantly represents the Government on this side of the House, that a disproportionate amount of the health budget is wasted on the administration of the executive itself. No Member wants this to be the case in respect of the proposed scheme.

The United Kingdom has implemented a similar scheme fully and appropriately under European regulations and it represents a pretty good model. In 2006 and 2007, the scheme received £7.65 million in grants-in-aid, of which £6.81 million was distributed to authors. This is the way it should be. We must ensure not more than 10% is spent on administration. Will the Minister of State, in his reply, give an undertaking that this scheme will be implemented? That will satisfy my distinguished colleague, Senator Ross, and also Senator Bacik. If the scheme is not implemented, it will be a farce and there will be no point whatever in our continuing to press these amendments. They will be in the land of utopian imagination.

Progress reported; Committee to sit again.