Copyright and Other Intellectual Property Law Provisions Bill 2018: Report Stage

Bill recommitted in respect of amendments Nos. 1 and 2.
Government amendment No. 1:
In page 9, lines 16 and 17, to delete “includes a specified transmission through the Internet and transmission by wireless means,” and substitute the following:
“means a specified transmission through the Internet, a transmission by wireless means and a transmission prescribed for the purposes of this definition,”.

By agreeing to the motion to recommit, the House allows a Committee-style discussion on amendments Nos. 1 and 2 only; that is Members may speak more than once on each item. In respect of other amendments, I remind the House that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to discussion on the amendment. Each non-Government amendment on Report Stage must be seconded.

Amendments Nos. 1 and 2 are related and may be discussed together by agreement.

Section 4 of the Bill amends section 2(1) of the Copyright and Related Rights Act 2000, which provides for the amendment of certain existing definitions and the inclusion of new definitions that are required for changes made elsewhere in the Bill. The definition of "broadcast" has been amended to provide for the repeal of section 183(a) of the Broadcasting Act 2009 with the intention of replacing the definition of "broadcast" with a technically neutral and future-proofed definition. Two new definitions linked to the definition of "broadcast" are also included in section 4 of the Bill, namely the definitions for "electronic transmission" and "specific transmission through the Internet.

Following engagement with stakeholders since the publication of the Bill and during its progress through the House, issues regarding the amended definition of "broadcast" and related definitions have been identified.

It transpires that the new definition of "broadcast" is too broad a scope and could, potentially, be interpreted to mean that any Internet transmissions, including sound recordings, could now be regarded as a broadcast. This could of course impact on the sound recording producers exclusive right of making a work available. I think that is very important.

It was never the Department's intention that the amended definition of "broadcast" would cover sound recordings, therefore it is necessary to make some technical amendments to the definition of "electric transmission" to clarify that sound recordings are not covered and to ensure that the rightholder's rights are protected.

A separate declaration to provide further clarity of the Government's intentions on this issue is proposed to be inserted in section 5 of the Bill and this explicitly states that the definition of "broadcast" will not prejudice the exclusive making available right provided for in the Copyright and Related Rights Act 2000 and this declaration is listed as amendment No. 2 on the numbered list.

I welcome the Minister of State, Deputy Halligan, to the House. I welcome these amendments. I note the attendance of the Irish Recorded Music Association, IRMA, and the Irish Copyright Licensing Agency in the Gallery and their interest in the Bill.

I acknowledge that the Minister of State has been furnished with an opinion from the former Attorney General, Mr. Paul Gallagher SC, who pointed out some serious flaws with the text as it currently stands, including breaches of Article 3(2) of the copyright directive 2001, Directive 2001/29/EC, the State's obligation under the WIPO performances and phonographs treaty, Article 26 of the Constitution and Article 17(2) of the EU Charter on Fundamental Rights. Amendment No. 1 will go a substantial way to address those issues. However, amendment No. 2 still remains unclear and somewhat confusing. The supplementary definition in the amendment states: "“2A. The definition of ‘broadcast’ shall not be construed to prejudice the exclusive right under this Act of a person to make a work available by means of a broadcast of the work.”.”." This is unclear for me because while the producers of recordings have an exclusive right in theory under the Act, it is subject to a licence of right, so there is therefore the presumption of a producer to rights over a recording but the Bill also proposes the rights of recording are subject to licence.

Will the Minister of State indicate the intention of amendment No. 2? Has a legal opinion been sought regarding the concerns I have raised. I will not divide the House but I am not sure that amendment No. 2 is necessary from my reading of the opinion. I would like to hear the Minister of State's opinion on amendment No. 2.

I welcome the Minister of State to the House. I have spoken to the Minister of State about this. In fairness to the Minister of State, he has done a lot of work in this area and on behalf of the Fianna Fáil we would certainly like to support the amendments. We think that quite a lot of thought has gone into them. As my comrade has said, we see them as very worthwhile and the Minister of State has our full support.

I welcome the Minister of State, Deputy Halligan. I welcome the amendments. The Minister of State arranged for us to have a series of very useful meetings with officials from his Department and, as a result of that, a number of our difficulties were ironed out. I wish to express my gratitude to the Minister of State for arranging that.

I thank the Senators. As I have said, it is a very complicated and complex Bill. As I previously mentioned, following meaningful engagement with a number of stakeholders who raised concerns around the definition with officials from my Department, I would ask for the support of Members to bring forward these amendments with the intention of clarifying the issue of the sound recordings that are not covered to ensure that the rightholder's rights are protected. By the way, if the amendment is accepted it does not hold up passage of the Bill by any stretch of the imagination. It will not slow down the passage of the Bill through the Oireachtas. We have taken all the legal advice we can take. We have met as many stakeholders as possible and anybody who wanted to meet us. We have made our experts available to Members, whom I know were delighted with it. I do not know what more I can say. I think both amendments Nos. 1 and 2 are an integral part and it is essential that they be included in the Bill.

In case there is a worry that by including these amendments in the Bill, it would somehow slow down the Bill, that will not be the case. If they are accepted on Report Stage, it will not slow down the passage of the Bill.

The comments made on amendment No. 1 were, by and large, favourable.

Amendment agreed to.
Government amendment No. 2:
In page 10, between lines 19 and 20, to insert the following:
“Provisions supplementary to definition of “broadcast”
5. The Principal Act is amended by the insertion of the following section after section 2:
“2A. The definition of ‘broadcast’ shall not be construed to prejudice the exclusive right under this Act of a person to make a work available by means of a broadcast of the work.”.”.

As amendment No. 2 has been discussed with amendment No. 1, is it agreed? I see that Senator Warfield may wish to speak, but as it has been already discussed, we cannot open up another discussion on it.

I did not get much clarity on the reason for the licensing. My point was not addressed.

Technically, it was agreed, but I will allow the Senator a brief comment. As the amendments were discussed together, I should not separate them. I will allow the Senator in, but he must be brief. I am breaking the rule of the Chair.

Will the Minister of State clarify whether it is presumed that the producer has the rights over the recording and are those rights subject to that licence outlined in amendment No. 2?

I know that this has been dealt with but will the Minister of State comment on it?

As I have said, we have taken everything into consideration. We have met the stakeholders, we have taken legal opinion on it and it is our view, and I do not know how much clearer I can be, with all respect, that the licence is a matter for the Copyright and Related Rights Act 2000, and allows music producers to earn money for the use of their music, so that is a small clarification. All the legal advice and advice from the stakeholders is that both amendments together warrant being included in the Bill.

We have taken it as far as we can. I have been as fair as I can under the circumstances.

Amendment agreed to.
Bill reported with amendments.
Government amendment No. 3:
In page 14, to delete lines 4 to 7 and substitute the following:
“57. (1) Subject to subsections (2) to (4), it is not an infringement of the rights conferred by this Part—
(a) to make or cause to be made a copy or communication of a work for the sole purpose of illustration for education, teaching or scientific research or of preparation for education, teaching or scientific research, or
(b) for an educational establishment, for the educational purposes of that establishment, to reproduce or cause to be reproduced a work, or to do or cause to be done, any other necessary act, in order to display it.
(2) Subsection (1) shall apply only if the reproduction or communication is—
(a) made for purposes that are non-commercial,
(b) made only to the extent justified by the non-commercial purposes to be achieved, and
(c) accompanied by a sufficient acknowledgement.
(3) Not more than 5 per cent of any work can be copied under this section in any calendar year.
(4) Where a copy which would otherwise be an infringing copy is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.”.”.

Government amendment No. 3 arises out of committee proceedings. Amendments Nos. 3, 4, 6 and 15 are related and may be discussed together by agreement. Is that agreed? Agreed.

As I have said on a number of occasions in the House and in the Dáil, the Bill is a technical piece of the legislation, the purpose of which is to amend and update the copyright and other intellectual property law, to modernise it for the digital age and to enable rightholders to better protect their intellectual property rights in the courts.

Section 14 of the Bill deletes section 57 of the Copyright and Related Rights Act 2000. This is hereafter referred to as the CRRA and replaces it with a section 57, as well as additional sections 57A and 57C, all of which introduce a range of new exceptions for education, teaching and scientific research. The new provisions are intended to expand to the full extent the education exceptions allowed by the EU Information Society directive.

Following engagement with stakeholders since the publication of the Bill and in its continued passage through the Houses, it has been identified that certain safeguards contained in section 57 of the Copyright and Related Rights Act were inadvertently removed. Senators may have been briefed on this issue. The safeguards were inadvertently removed during the drafting process. As I signalled to the House on Committee Stage, I propose to reinstate the safeguards by amending section 14 and Schedule 1 to the Bill and creating a new section that will amend section 173 of Copyright and Related Rights Act. The changes to section 14 as proposed in amendment No. 3 are section 57(1) provides that it is not an infringement for an educational establishment to make a copy of a work, or communication of a work, for the sole purpose of illustration for education, teaching or scientific research, or for an educational establishment to reproduce a work in order to display it.

Section 57(2) provides that the educational exceptions are subject to the three-step test under the Berne Convention for the Protection of Literacy and Artistic Works. The three-step test provides that exceptions to copyright shall only apply if they are for non-commercial purposes, justified for the purpose to be achieved and accommodated by a sufficient acknowledgement. This test is generally understood to apply to all copyright exceptions in the Copyright and Related Rights Act, but it is not explicitly stated in respect of the educational exceptions. Therefore, it was considered to be a useful addition for the purposes of clarity, specifically in the case of the educational exceptions in section 14 of the Bill.

Section 57(3) reinstates the existing provision about which we spoke previously that no more than 5% of a work may be copied in any calendar year in order to avail of the educational exceptions, thus protecting the integrity of the copyrighted work.

Section 57(4) reinstates the existing provision that provides for the possibility of right holders taking infringement proceedings if a copy of a work is made under the educational exceptions provided for in section 57(1) and subsequently sold, rented, loaned or offered for same.

The deletion of lines 1 to 3, inclusive, in Schedule 1 to the Bill is necessary to remove the reference to education from the fair dealing provision for research contained in section 50 of the Copyright and Related Rights Act. The inclusion of education in these three specific instances expands the educational exceptions far beyond what currently applies and would unreasonably prejudice the rights of right holders. Amendment No. 15 deletes the table as it currently appears in Schedule 1 to the Bill and replaces it with a new table minus the information in lines of 1 to 3, inclusive.

A further technical amendment is required to section 57C(1) of the Bill which lists a number of sections of the Copyright and Related Rights Act to which the educational exceptions do not apply because of the existence of licensing schemes that must be used instead of the exceptions. An amendment listed as amendment No. 4 is required to delete the reference to the phantom section 50A as it was not created in the Bill. In addition, the reference to section 50 should also be deleted as it is a consequential amendment as a result of the deletion of the specific references to education from the fair dealing provision for research contained in section 50 of the Copyright and Related Rights Act.

As a result of the creation of section 57C related to licensing schemes for educational establishments, it is necessary to make a consequential amendment in section 173 of the Copyright and Related Rights Act to change the reference for the requirement for licences from section 57 to section 57C. Amendment No. 6 proposes to amend section 173 of the Copyright and Related Rights Act. This is necessary to avoid any uncertainty for schools and other educational establishments on the continued need to obtain licences for the use of copyright protected works to protect the rights of authors, publishers and education books.

Amendment agreed to.
Government amendment No. 4:
In page 14, line 25, to delete “50, 50A,”.
Amendment agreed to.

Amendments Nos. 5 and 8 to 10, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 16, line 18, after “given in” to insert “an educational institution or in”.

The provisions in this section of the Bill seem to have been narrowed to libraries and archives. I thought it was a good idea to extend the section to include educational institutions to make it perfectly clear and specific that they were involved and considered by the Bill.

Amendment No. 8 refers to a prescribed library or archive also exempting things given during a public lecture in an educational institution undertaken for the sole purpose of education and so on, accompanied by a sufficient acknowledgement that, once the criteria are satisfied, such use shall constitute fair dealing and be exempt from the restrictions under the law. The final part of amendment No. 8 defines fair dealing as including the making use of a performance or recording which has been made lawfully available to the public for a purpose and to an extent which shall not unreasonably prejudice the interests of the rights owner.

I second the amendment.

I again thank Senator Norris for his amendments. He has a great interest in this subject and analysed the Bill in its totality. I have listened to the rationale outlined on a number of occasions and, with respect, do not propose to accept the amendments. The Senator must agree that these matters were debated comprehensively and extensively on Committee Stage, following which the Senator met officials of the Department to discuss his concerns in greater detail and when further explanations were provided as to why the amendments could not be accepted. The Government's position remains unchanged. Again, with respect, I do not see any merit in debating the matter any further. Based on the meetings and comprehensive discussions we have had on the amendments, the Senator might consider withdrawing them.

I am prepared to withdraw them.

Amendment, by leave, withdrawn.
Government amendment No. 6:
In page 21, between lines 13 and 14, to insert the following:
“Amendment of section 173 of Principal Act
27. Section 173 of the Principal Act is amended—
(a) in subsection (1), by the substitution of “, 57C” for “, 57”, and
(b) in subsection (3), by the substitution of “, 57C” for “, 57”.”.
Amendment agreed to.

Amendments Nos. 7 and 14 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 7:
In page 21, line 41, to delete the text inserted by Seanad Committee amendment No. 2 and substitute the following:
“any combination thereof).”.”.

I will speak to amendment No. 7. I remind the House that we are talking about the digital deposit. Institutions such as Trinity College Dublin and the National Library of Ireland have a responsibility to archive every physical publication in the State. We have not yet designed a digital deposit scheme to protect what is put online within 100 days. What is put online is vulnerable to disappearing.

Essentially, we are not archiving the digital memory that we put there, so what goes online during election and referendum campaigns and what goes online generally is not archived. The solution is to allow the National Library, for example, the ability to sweep the .ie domain and to archive that for future generations because what goes online is so disposable. An amendment was passed in the Dáil, which provided that within 12 months of the enactment of the Bill the Government would bring forward a report on the feasibility of establishing a digital legal deposit scheme. The delay in passing the Bill has also delayed that measure. It is a source of anxiety for me that we have not dealt with the issue.

We passed an amendment on Committee Stage in this House that would legislatively allow for the creation of a digital deposit scheme. We met officials from the Department since then and I understand that we are putting the cart before the horse in passing the legislation without having the regulatory framework in place. Because I believe so strongly in the need for a digital deposit scheme, I want the scheme to be a success and I do not want it to be vulnerable to challenge. Could the Minister of State provide an update on the current position in respect of archiving digital material and not losing our national memory? Most web pages disappear within 100 days, so time is not on our side. That was called for in the Modernising Copyright report published in 2013. I support the amendment to remove what we achieved in the previous Stage, but I ask the Minister of State for a commitment that we would have sight of the heads of a Bill or a regulation that would allow the National Library to sweep the .ie domain and have freedom to do so and the protection of the law in order that we can archive our digital memory. Time is not on our side. I support the amendment, with a heavy heart.