Copyright and Other Intellectual Property Law Provisions Bill 2018: Report Stage (Resumed) and Final Stage

Debate resumed on 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).”.”.

Minister of State at the Department of Business, Enterprise and Innovation (Deputy John Halligan)

Amendment No. 7 calls for the deletion of the new section 27(4B), which was inserted in the Bill on Committee Stage. Essentially, the intention of this subsection is to provide for a full digital deposit system that would facilitate the recording, archiving and making available of websites with domain names related to Ireland, the .ie domain and others, without infringing the copyright on the website. This is often referred to as "capturing, or preserving, the web".

The matter was debated extensively during Committee Stage and officials from my Department subsequently met interested Senators to explain the difficulties associated with that, and other matters, in greater detail.

The Department of Culture, Heritage, and the Gaeltacht has policy responsibility for the creation of a digital deposit scheme. I informed the House of that on the previous occasion we discussed the matter. The Department is working on the issue as part of its general work programme. As I outlined on the previous occasion, some of the amendments could not be accepted because the creation of a digital deposit to capture and preserve Irish websites is not just a matter of amending copyright legislation. It is a significant project, which requires the collaboration of multiple institutions. Senators may have received a brief in that regard. Significant resources and skills are required to capture and preserve the digital web.

The Government's position on the issue remains unchanged. We have engaged extensively with shareholders and Members. The Government supports the creation of a digital deposit of works as part of the nation's archive, but providing for a full digital deposit system that would facilitate "capturing the web"” is not simply a matter of amending copyright legislation; it is a significant national project that must be done correctly. This includes laying down sufficiently clear parameters about what material will be copied and preserved, as well as safeguards around the use of that material in the future.

Section 106 provides an opportunity for the necessary work to be carried out on the development of the policies and procedures around capturing the web. That particular section, which was introduced following an opposition amendment on Report Stage in Dáil Éireann, is viewed by the Government as a pragmatic way to advance this project while allowing time for the important and necessary work to take place.

I, therefore, call for the deletion of the provision for several reasons. First, the policy responsibility for this matter falls under the remit of the Department of Culture, Heritage and the Gaeltacht and that Department is currently undertaking the necessary detailed and extensive examination of this proposal. Officials in my Department have supported, and will continue to support that Department with its development of the proposal specifically in relation to protecting the intellectual property of creators and website owners. Second, there are concerns with the text of the amendment, particularly in view of the level of work required to develop a robust regulatory framework to provide for "capturing the web" and the extensive nature of the provision included in the Bill going beyond the .ie domain. Third, section 106 keeps the matter "live" while giving the time necessary to developing the appropriate framework. Both Senators were informed of these concerns during meetings with my officials and I trust they will not oppose the deletion of the Committee Stage amendment of section 27(4B).

Related to this amendment seeking the deletion of section 27(4B), I also seek a minor technical amendment to section 106 through amendment No. 14. This was a new section proposed on Report Stage in Dáil Éireann and accepted by the Government as a pragmatic way to address the issue of "capturing the web". The section calls for a report to be published on the feasibility of establishing a digital legal deposit scheme for capturing the web "within twelve months of the enactment of this Bill", which is a reasonable period. However, the Office of the Parliamentary Counsel, as legal drafters of Irish legislation, has indicated that this should read "within twelve months of the enactment of this Act". That is its interpretation and what we have been advised.

I call for the acceptance of a minor technical amendment to correct this oversight, which it was, and to ensure that the text is legally sound as we have been informed it is. That is important.

Senator David Norris

The Minister of State makes a fairly persuasive argument, first that this matter is properly in the remit of another Department, namely, the Department of Culture, Heritage and the Gaeltacht. Second, he has given a commitment to this House that work in this area will continue and that officials from his Department will support those from the other Department in formulating this policy.

Deputy John Halligan

I give credit to the Senators who have analysed this Bill extensively, which is very important for democracy. If they want again to meet either Department on any questions they need to ask, at any stage, they should feel free to do so.

Senator David Norris

I am sure they have had enough of us.

Deputy John Halligan

I spoke with officials in both Departments yesterday and today and that offer stands.

Amendment agreed to.

Senator David Norris

I move amendment No. 8:

In page 22, to delete lines 12 to 16 and substitute the following:

“(3) Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—

(a) either—

(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive, or

(ii) during the course of a public lecture given in an educational institution or in a prescribed library or prescribed archive or given by the librarian or archivist of a prescribed library or prescribed archive,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

shall constitute fair dealing with the work for the purposes of section 50(1).

(4) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.

(5) In this Part, ‘fair dealing’ includes the making use of a performance or recording which has been lawfully made available to the public for a purpose and to an extent which will not unreasonably prejudice the interests of the rightsowner where such use is accompanied by a sufficient acknowledgement.”.”.

Senator Fintan Warfield

I second the amendment.

Amendment put and declared lost.

Senator David Norris

I move amendment No. 9:

In page 22, line 12, to delete “means” and substitute “includes”.

Senator Fintan Warfield

I second the amendment.

Senator David Norris

I want to delete "means" which narrows the focus and substitute the word "includes" which is far broader and inclusive.

Amendment, by leave, withdrawn.

Amendment No. 10 not moved.

An Cathaoirleach

Amendment No. 11 in the names of Senators Norris and Craughwell arises out of Committee Stage proceedings. Amendments Nos. 11 to 13, inclusive, are related and may be discussed together, by agreement.

Senator David Norris

I move amendment No. 11:

11. In page 32, between lines 20 and 21, to insert the following:

“CHAPTER 5

Miscellaneous amendments of Principal Act in relation to user rights

Fair dealing

45. (1) Section 49 of the Principal Act is amended by inserting the following subsection after subsection (1):

“(2) In this Part, ‘lawful user’ means a person who, whether under a licence to undertake any act restricted by the copyright in the work or otherwise, has a right to use the work, and ‘lawful use’ shall be construed accordingly.”.

(2) Section 50 of the Principal Act is amended, in subsection (4), by substituting “includes” for “means”.

(3) The Principal Act is amended by inserting the following section after section 50:

“Fair dealing - public lectures in educational establishments

50A.(1) Without prejudice to the generality of section 50(1), the brief and limited display of a copy of a work—

(a) during the course of a public lecture given in an educational establishment,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

shall constitute fair dealing with the work for the purposes of section 50(1).

(2) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(4) The Principal Act is amended by inserting the following sections after section 106:

“Fair dealing - format-shifting for private use

106A.(1)Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if—

(a) the owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format,

(b) he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced,

and

(d) the reproduction is made for purposes that are neither directly nor indirectly commercial.

(2) Subsection (1) shall not apply if—

(a) the work being reproduced is an infringing copy, and

(b) the person making the reproduction did not have reasonable grounds to believe that the work was not an infringing copy.

(3) Where a reproduction 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.

(4) For the avoidance of doubt, subsection (3) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.

(5) Subsection (1) does not apply if the owner or lawful user of the work from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(6) Without prejudice to section 2, for the purposes of subsection (1)(a), ‘work’—

(a) includes a work which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and

(b) does not include a work which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(7) It is not an infringement of any moral right conferred by Chapter 7 of Part II to do anything which by virtue of this section is not an infringement of an infringement of the rights conferred by this Part.

Fair dealing - back-up copies

106B.(1)(a) Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if the owner or lawful user of the work makes or causes to be made a reproduction of the work as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.

(b) In particular, it is not an infringement if the reproduction is made as a back-up copy in case the work is lost, damaged or otherwise rendered unusable.

(2) Subsection (1) shall apply only if the owner or lawful user of the work being reproduced owns or is authorised to use the medium or device on which the reproduction is reproduced.

(3) Subsection (1) shall not apply if—

(a) the work being reproduced is an infringing copy, and

(b) the person making the reproduction did not have reasonable grounds to believe that the work was not an infringing copy.

(4) If the work is lost, damaged or otherwise rendered unusable, then a reproduction made under subsection (1) shall be treated as the work.

(5) Where a reproduction 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.

(6) For the avoidance of doubt, subsection (5) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.

(7) Subsection (1) does not apply if the owner or lawful user of the work from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(8) Without prejudice to section 2, for the purposes of subsection (1)(a), ‘work’—

(b) does not include a work which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(9) It is not an infringement of any moral right conferred by Chapter 7 of Part II to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(5) Section 220 of the Principal Act is amended—

(a) by designating the existing section as subsection (1), and

(b) by the addition of the following subsection:

“(2) In this Part, ‘lawful user’ means a person who, whether under a licence to undertake any act restricted by recording rights in relation to a performance or otherwise, has a right to use the recording of a performance, and ‘lawful use’ shall be construed accordingly.”.

(6) The Principal Act is amended by inserting the following section after section 221:

“Fair dealing - public lectures in educational establishments, libraries and archives

221A.(1)Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—

(a) during the course of a public lecture given in an educational establishment,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

shall constitute fair dealing with the work for the purposes of section 221(1).

(2) Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—

(a) either—

(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive, or

(ii) during the course of a public lecture given in a prescribed library or prescribed archive or given by the librarian or archivist of a prescribed library or prescribed archive,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 50(1).

(3) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(7) The Principal Act is amended by inserting the following sections after section 254:

“Fair dealing - format-shifting for private use

254A.(1)Without prejudice to the generality of section 221(1), it shall constitute fair dealing with a recording of a performance for the purposes of section 221(1) if—

(a) the owner or lawful user of the recording makes or causes to be made a reproduction of that recording in a different format,

(b) he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced,

and

(d) the reproduction is made for purposes that are neither directly nor indirectly commercial.

(2) Subsection (1) shall not apply if—

(a) the recording being reproduced is an infringement of the rights conferred by this Part, and

(b) the person making the reproduction or causing it to be made did not have reasonable grounds to believe that the recording was not such an infringement.

(3) Where a reproduction which would otherwise be an illicit recording 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 illicit recording for those purposes and for all subsequent purposes.

(5) Subsection (1) does not apply if the owner or lawful user of the recording of a performance from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(6) Without prejudice to sections 2 and 202, for the purposes of subsection (1)(a), ‘recording of a performance’—

(a) includes a recording which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and

(b) does not include a recording which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(7) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.

Fair dealing - back-up copies

254B.(1)(a) Without prejudice to the generality of sections 221(1) and 242, it shall constitute fair dealing with a recording of a performance for the purposes of section 221(1) if the owner or lawful user of the recording makes or causes to be made a reproduction of that recording as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.

(b) In particular, it shall constitute fair dealing for the purposes of section 221(1) if the reproduction is made as a back-up copy in case the recording is lost, damaged or otherwise rendered unusable.

(2) Subsection (1) shall apply only if the owner or lawful user of the recording being reproduced owns or is authorised to use the medium or device on which the reproduction is reproduced.

(3) Subsection (1) shall not apply if—

(a) the recording being reproduced is an infringement of the rights conferred by this Part, and

(b) the person making the reproduction or causing it to be made did not have reasonable grounds to believe that the recording was not such an infringement.

(4) If the recording is lost, damaged or otherwise rendered unusable, then a reproduction made under subsection (1) shall be treated as the recording.

(5) Where a reproduction which would otherwise be an illicit recording 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 illicit recording for those purposes and for all subsequent purposes.

(7) Subsection (1) does not apply if the owner or lawful user of the recording from which the reproduction was made disposes of, gives away, rents, or sells that recording to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(8) Without prejudice to sections 2 and 202, for the purposes of subsection (1)(a), ‘recording of a performance’—

(b) does not include a recording which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(9) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(8) Section 329 of the Principal Act is amended, in subsection (2), by substituting “includes” for “means”.”.

Senator Fintan Warfield

I second the amendment.

Deputy John Halligan

I acknowledge Senator Norris' resubmission of his amendments proposing a private copy and the introduction of levies. Once again, however, the Government will not accept the proposed amendments. We debated this matter in great detail on Committee Stage and in subsequent meetings with officials of the Department where the reason the amendments cannot be accepted was given. As the Government's position remains unchanged and I have no more to say on it, having spoken on it several times, I respectfully request that these amendments be withdrawn.

Senator David Norris

This is a very substantial series of amendments. The first refers to fair dealing, the concept that someone is allowed to use material without infringing copyright for certain purposes, covers public lectures and educational establishments, format shifting for private use, in other words taking it from one medium to another, for example, from a computer to a mobile phone and very importantly, back-up copies. Surely to goodness we should be encouraging people to make back-up copies so that material will not be permanently lost to the archive.

Amendment No. 13 establishes the right to fair compensation and establishes mechanisms whereby the fair compensation can be achieved. There should be levies to fund the right to fair compensation and that copyright owners have established the right to compensation. There is a great deal of information in this. It is a very complex, highly technical matter. We have discussed it with the departmental officials.

Will the Minister of State respond to issues such as the use of back-up copies? It is extremely important that people should be encouraged to make them.

Deputy John Halligan

Making back-up copies of one's own work is allowed, as one is the rightful owner. The Senator is talking about making additional copies of works of other people. I could go into lengthy detail but there are two main points: the copyright review committee, which reported in 2013, recommended the introduction of a private copying exception which would be framed for private and domestic uses and for back-up copies. This exception was intended to legislate for an action already commonly occurring. On the very fine point the Senator makes regarding levies, we have not received any submission.

Senator David Norris

I find that astonishing.

Deputy John Halligan

I have seen no submission. The EBI has not received any submission from rights holders calling for levies to be introduced. It has not received any engagement from stakeholders on the matter providing evidence of the harm caused to rights holders by private copying to justify increasing the cost to Irish consumers. While the proposed amendments would force businesses to pay burdensome levies, the Senator might agree it is inevitable that these costs would be passed on to the consumers. This has occurred throughout the EU. It would not be limited to private customers but would cover business consumers. We would be in very serious waters when people purchase material for copying or facilitating, regardless of the use it was intended for. We have examined this closely and have taken opinions from everyone we possibly can. The Senators have met officials to discuss it. We have referred to the very comprehensive report of the committee in 2013 and have received no submissions whatsoever on any of the issues the Senator has spoken of.

Based on that again, I ask the Senator to trust us on this and respectfully request that the amendments be withdrawn.

Senator David Norris

I was astonished when the Minister's advisers told us that the holders of copyright had not indicated their desire for levies, compensation and so on. Who am I to second guess the copyright holders? If they are not interested, there is no reason for me to pursue this particular matter so I will have to accept what the Minister of State says. If we had a series of votes, nothing would be achieved. We are facing insurmountable odds in terms of voting numbers and I am just not going to waste the time of the House.

An Cathaoirleach

Is the Senator withdrawing the amendment?

Senator David Norris

Yes.

An Cathaoirleach

The comments made by the Senator will be recorded.

Amendment, by leave, withdrawn.

An Cathaoirleach

Amendment No. 12 has been discussed with amendment No. 11. Can I expect a similar response?

Senator David Norris

Yes.

Amendment No. 12 not moved.

An Cathaoirleach

Amendment No. 13 has been discussed with amendment No. 11. Can I expect a similar response?

Senator David Norris

Yes.

Amendment No. 13 not moved.

Government amendment No. 14:

In page 41, line 13, to delete “Bill” and substitute “Act”.

Amendment agreed to.

Government amendment No. 15:

In page 42, to delete lines 5 to 45 and substitute the following:

“

Reference No.(1)	Principal Act (2)	Words to be substituted (3)	Substituting words (4)
1	section 53(1)	instruction or of preparation for instruction	education or of preparation for education
2	section 53(2)(a)	instruction	education
3	section 53(3)	instruction or of preparation for instruction	education or of preparation for education
4	section 53(4)(a)	instruction	education
5	section 55(1)(b)	instruction	education
6	section 55(2)	instruction	education
7	section 61(2)	research	education, research
8	section 62(2)	research	education, research
9	section 63(2)(b)	instruction	education
10	section 67(3)	research	education, research
11	section 92(3)(a)	research	education, research
12	section 168(1)	instruction	education
13	section 171(1)	instruction	education
14	section 172(1)	instruction	education
15	section 223(1)	instruction or preparation for instruction where the copying is done by or on behalf of a person giving or receiving instruction	education or of preparation for education where the copying is done by or on behalf of a person giving or receiving education
16	section 224(1)(b)	instruction	education
17	section 229(2)	research	education, research
18	section 230(2)(b)	instructions	education
19	section 234(3)	research	education, research
20	section 245(3)(a)	research	education, research
21	section 329(1)	research	education, research
22	section 330(1)	instruction or of preparation for instruction	education or of preparation for education
23	section 330(1)(a)	instruction	education

”.

Amendment agreed to.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Senator David Norris

I compliment the Minister and his officials. They were very courteous in receiving us. At least we can say that the matters, which were the subject of the amendments, have been discussed at some length, that the attention of the Department has been drawn to the issues involved and, to a large extent, satisfactory discussions took place. I thank the Minister. It is important that we do not hold this Bill up any more. We ventilated the issues that we were concerned about, which is the responsibility of us as Members of the Seanad, and I am glad that we have fulfilled that purpose. Even though amendments have not been accepted the issues have been put on the record.

Senator Fintan Warfield

I thank the Minister of State and his officials for facilitating our requests for meetings. I might seek further clarity in writing on amendment No. 2. I ask the Minister of State to consider the goodwill that we have given the Bill. I urge him to be a champion for the digital deposit scheme as it needs a champion in Government. Our national institutions, particularly the National Library of Ireland, are crying out for a digital deposit scheme.

Minister of State at the Department of Business, Enterprise and Innovation (Deputy John Halligan)

I sincerely thank the three Senators for their engagement and conscientious dissection of this Bill. The Bill is complicated and without a thorough debate by the Senators who scrutinised and examined it, we would not have a comprehensive and a good quality Bill. All of us have listened, including the members of the committee and the officials, attentively to the speakers. I thank all of the Senators who spoke about this complex Bill during its passage for their exceptional contributions. I thank them for a good and thorough debate, and for the courtesy they have shown towards my officials and myself in the House.

Question put and agreed to.

Sitting suspended at 1.35 p.m. and resumed at 2 p.m.

Seanad Éireann debate - Wednesday, 15 May 2019

Copyright and Other Intellectual Property Law Provisions Bill 2018: Report Stage (Resumed) and Final Stage

Seanad Éireann debate -
Wednesday, 15 May 2019