I welcome the Minister and his officials, Mr. Jack Thompson and Ms Patricia Phillips. The first amendment is in the name of Deputies Owen and Stanton.
Copyright and Related Rights Bill, 1999: Committee Stage.
With your permission, Chairman, and that of the members, I would like to make some general remarks before we commence Committee Stage. The responsibility of bringing forward the Copyright and Related Rights Bill, 1999, has been both an honour and an education for me. The honour involved in taking responsibility for the management of legislation of such major cultural and economic significance is obvious. It might go unnoticed by many members of the public but I know that those who have worked on the Bill for some time will appreciate its significance. The education aspect has arisen largely from the possibilities for positive parliamentary scrutiny, even of complex technical Bills, which the passage of this measure through the Houses has so far revealed. It is appropriate at this point to congratulate the Members of the Upper House, of all parties, whose intense and intelligent debate on Committee and Report Stages helped clarify a number of important issues.
I should also compliment Members of the Dáil, particularly the members of this committee, on the way in which they have conducted their scrutiny of the Bill to date. In particular, the initiative of the committee in holding a special hearing to allow interested parties make oral presentations proved very useful to all concerned and is a model that could usefully be followed by committees considering complex legislation in future.
I regret it was not possible for Government amendments to be circulated earlier. It was our intention to do so much earlier than in fact proved possible. However, this was prevented by factors beyond my control or that of my Department, notably, the illness of a key member of staff in the Office of the Parliamentary Draftsman, who was affected by the terrible 'flu which many people got over the Christmas period. Despite heroic efforts on the part of that staff member, it proved impossible to complete work on the Government amendments any earlier.
I fully understand this resulted in consequential difficulty and delay for Opposition Deputies in submitting their amendments and that the cumulative result has added to the difficulties facing us all in scrutinising this very complex Bill. Nevertheless, rather than delay the progress of the Bill further, I am anxious for its examination by the House to commence at the earliest possible date. I thank the committee for its willingness to proceed with consideration of the Bill today in these difficult circumstances. I am sure, given the interest and goodwill shown by all parties in the course of the Bill's passage to date, we can make good progress despite all the difficulties.
I concur with the Minister of State, both in terms of the work load imposed by advancing the Bill this far and the cultural and economic significance and importance of the Bill. He is right that one would not think so from the public debate that has surrounded the Bill. It is unfortunate there is a misunderstanding that copyright is an ancient and arcane matter, to do with creative artists and so on. Perhaps it should have to do with that, but we will come to that during the course of the debate. However, in this Bill it has a great deal more significance than that and is profoundly influential in scope. Copyright may have concerned artists and creative people but in the Bill it is also concerns big business, companies and influential collection agencies. The Minister of State is right that it was a huge burden to get it this far.
I presume the Minister of State gave his explanation for the delivery of the amendments to us last evening in order to pre-empt criticism from this side of the House. Given the complexity of this legislation, if we reach section 190 today - as the Chairman hopes - it will mean we are not doing our job as a committee. It is very unfortunate that the Minister of State found himself in a position where the amendments reached me only yesterday afternoon. As he said, that gave inadequate time. However, we are all human. I know a little about the intellectual property unit in the Department and I understand the significance of the absence of a key person. It could happen to any of us. However, it does not put us in a very good position, in regard to such complex and farreaching terms, to have to debate this morning material which was advanced to us last night.
That material was not advanced in the Seanad. The Seanad debate suggests it was hoped the Bill would be passed by that House last summer. One would have thought that six or seven months later, notwithstanding the 'flu, we might have had some of the amendments between then and now, but we did not. However, we will plough on as best we can and give a generic warning that some matters will have to be dealt with or recommitted on Report Stage because of the late arrival of amendments.
That is a fair comment in regard to Report Stage. I am pleased to see the Minister of State indicating his agreement in that regard.
I also want to pay tribute to everyone involved. I followed the debate in the Seanad. I thank the Minister of State and his officials for the assistance they have given us. However, the amendments arrived very late last night. As the Minister of State knows, the Bill is extremely complex and it was very difficult to digest amendments which were not received until 5 p.m. or 6 p.m.. I sympathise with the Department's difficulties and I have great admiration for those who have waded through and dealt with this material. However, if we had known about the difficulties we might have postponed this meeting to give us a chance to digest the amendments. I do not know what the hurry was, given that this has gone on for so long. I asked the clerk yesterday what the difficulty was and I understand the Minister of State was anxious to proceed with the Bill. We will do our best to be as co-operative as possible, but it would have been more respectful if we had had a little more time to digest these amendments, maybe withdraw some of our own and make things easier for everybody. While I can understand it, I am disappointed that one of my amendments has been ruled out of order. I know that is not the Minister of State's fault but I understand that we will not be able to discuss the issue of establishing a tribunal by way of amendment. Perhaps the Minister of State will give us his thoughts on that at some point.
This matter arose in 1963 when the last Copyright Bill was discussed and the then Minister let it be understood that if the current system did not work he would examine the idea of a tribunal. Everyone would agree that the current system of control has not worked and has led to many problems and difficulties. I am anxious that we will have an opportunity to discuss it. Perhaps the Minister of State will read a briefing note on it. I am sorry to raise the matter now, but I thought I should bring it up at this stage rather than later.
I wish the Minister of State well dealing with this legislation. Let us get to it.
I appreciate the comments of Deputies. The delays in this case were not specifically in my Department. As I have explained, they resulted from a situation in the Office of the Attorney General but that is just a point of detail. As somebody who has been trying to pursue this matter for some time as Minister of State, I was very anxious to move it through the process at the earliest possible date. As most Deputies will know, I suggested at one stage that we should try to deal with it before Christmas, taking three days to do so, but different views on that proposal were expressed to me. We agreed to try to deal with the Bill after Christmas and an earlier suggestion was that we should take three days this week to do so, but that did not suit everybody either. When it was put to me that there were difficulties, I pressed everybody at official level to try to get started so that we would tog out on the issue. I accept that the ball came a bit late but at least we now have a ball to work with.
In the context of the comments that have been made, I will treat the committee with the greatest of respect. I will listen carefully to what is said and will try to accommodate the views coming through and the points that have been made to me already by members of the committee. I will try to get the best possible legislation through the House. I accept this is a tremendously complex area which warrants detailed scrutiny. I look forward to the type of scrutiny the committee will give the Bill.
The Chairman has set out an ambitious programme for today which it may not be possible to realise, but it is important for us to put our toes in the water, at least. We will do so today. If there are issues that need to be deferred to Report Stage I will be conscious of that in light of the lack of time that some committee members have had to deal with some aspects of the Bill. Having looked through the amendments, we will have an opportunity today to make some useful progress on the Bill.
Let us take the first step in the right direction.
I move amendment No. 1:
In page 23, subsection (1), line 35, after "Copyright" to insert ", Database, Performance".
This legislation is extremely complex. In other jurisdictions there is separate legislation for databases and performances. The Title of the Bill does not give an indication of what it contains. "Related Rights" is an extraordinarily general term. The Bill has many parts and database and performance rights are contained therein. They are new terms which, I suggest, should be included in the Title. These matters have not been the subject of much public debate and broadening out the Title may generate a wider interest in the legislation. It would state what the Bill is and what it sets out to achieve. Other rights are included in the Bill but they are lesser ones. The three major subjects of the Bill are copyright, databases and performance.
I do not wish to set off on the wrong foot, but this reference is in the Long Title of the Bill. If Deputy Stanton looks at page 23 he will see a reference to performers and rights in performances and to the legal protection of databases. While appreciating the thinking behind the amendment, I would be grateful if the Deputy did not press it. If the amendment were to be adopted it would effectively render redundant the reference to related rights in the Title. In any case, the term "related rights" is sufficiently descriptive of the content of the Bill. It also stresses the relationship between the performance and database-related content of the Bill and the somewhat better understood copyright content which should assist in promoting understanding of the related rights concerned, rather than impeding it. I appreciate that this is the first amendment, but I appeal to the Deputy to accept my response that what he seeks to achieve is, in fact, referred to in the detailed Long Title. I am satisfied that what he seeks to achieve is more than adequately dealt with in that way.
The Long Title of a Bill is seldom used. When people refer to the Bill they will call it the Copyright and Related Rights Bill. We are moving into a very complicated area, especially with the use of e-commerce via the Internet. The addition of the word "database" in the Title would give recognition to the new Internet age we are entering. It moves away from the idea that Deputy Rabbitte mentioned when he spoke about artists. The matter is more complicated than that. I moved the amendment in order to modernise the notion of the term "copyright".
"Related Rights" is understood by all practitioners in this area to include database and performance. Unfortunately, that is the position and I cannot accept the amendment.
I move amendment No. 2:
In page 24, subsection (1), line 38, after "Éireann" to insert "Seirbhísí Theilifís naGaeilge Teoranta".
I am told that the definition of authorised broadcaster will have to be amended to include Teilifís na Gaeilge. Otherwise TG4 will not have the benefit of sections of the Act, including section 95 which permits an authorised broadcaster to record for the purposes of broadcasting provision and maintenance. Likewise, only authors and broadcasters can avail of the exceptions to integrity rights in sections 105 and 295.
This amendment seems entirely appropriate and I see no difficulty in accepting it. I thank Deputies Owen and Stanton for drawing it to my attention. I accept the amendment.
I move amendment No. 3:
In page 25, line 2, to delete "lawful".
The purpose of this amendment is to seek to delete from the relevant definition section of the Bill the term "lawful". The Bill as passed by the Seanad sets out the meaning to attach to the term "broadcast". It seems to me that copyright should subsist even if the broadcast is unlawful. I do not understand why it is there at all. It seems to be that the lawfulness or otherwise of the signal is a matter for other legislation. In terms of defining "broadcast" as a transmission by wireless means, including terrestrial, satellite, etc., the issue is direct public reception, not whether it is lawful or unlawful. My amendment seeks to delete the term "lawful".
Section 2 defines "broadcast" as "a transmission by wireless means, including by terrestrial or satellite means, for lawful direct public reception. . . ". If the word "lawful" is deleted and substituted by the word "unlawful" the definition would read ". . . for unlawful direct public reception. . . ". What does that mean? Is the word "lawful" or "unlawful" necessary? Perhaps the word "lawful" should be deleted because it appears to be a cause of confusion.
Deputies will be aware that I have received representations from several quarters on this point, including RTE, which had difficulty with the idea that a distinction should be drawn between legal and illegal broadcasters because it could be presented as disadvantaging the legal operators and undermining rights holders' protection by reference to a legal one. That was the thinking behind inserting this provision.
Against this is the argument that legislation should not give any degree of apparent recognition to illegal broadcasters, as both Deputies have confirmed. Having considered the representations and the arguments of Deputies I am, on balance, persuaded that the proposed amendment would be beneficial and I will accept it. My only reservation is that I will need to keep the consequences of the amendment under continual review in case any practical disadvantage follows from it. Nonetheless, I thank the Deputies for their proposal.
As amendments Nos. 4 and 5 are alternative and amendments Nos. 72 and 139 are related all may be taken together. Is that agreed? Agreed.
I move amendment No. 4:
In page 25, between lines 17 and 18, to insert the following:
"(i) a service which is only incidental to a business of keeping or letting premises where persons reside or sleep and is operated as part of the amenities provided exclusively or mainly for residents or inmates therein;".
Amendment No. 72, in the name of the Minister, relates to section 93, and amendment No. 139, also in the name of the Minister, relates to section 233.
The Deputy should have the relevant documentation before him.
I do, but having it before me and having the time to assimilate it are two different matters.
We are working too fast for the Deputy.
Amendment No. 4 relates to the definitions section. The Minister's amendments go beyond that. It is necessary to insert into the definitions section the form of words set out in the amendment, or something like it, to address the fantastic position brought to our attention by the Irish Hotels Federation. It is worthy of a couple of minutes of discussion, if only to try and establish the provenance of the original position in the Bill. The notion that hoteliers would have to pay royalties to a collection agency - probably the IMRO in this case - for television sets in their bedrooms is mind boggling. It is not required by any international obligations, nor by European law, impending or otherwise. Indeed, in terms of European law it is difficult to understand that a television in a hotel bedroom is anything other than a normal item of furniture. The wider application of such a concept would have enormous implications.
My amendment seeks to insert on page 25, between lines 17 and 18, after the definition of "cable programme service" an exclusion of "a service which is only incidental to a business of keeping or letting premises where persons reside or sleep and is operated as part of the amenities provided exclusively or mainly for residents or inmates therein". Given the benign mood of the Minister of State, I anticipate a positive response from him.
This controversial issue is a cause of worry to a number of people. We only recently received the Minister's amendment and you will appreciate, Sir, that we have not had the time to consider it in full. Deputy Rabbitte mentioned hoteliers, which is a prime concern. Would prisoners be included and, if so, will they have to pay royalties? The term "inmates" is used in our amendment No. 5.
Last evening a taxi driver asked me about the position of radios in taxis. This is a related matter as taxis provide a service. The Minster's amendments exclude charges where sleeping accommodation and other services are provided to residents or inmates. That is acceptable. What is meant by the term "discreet charge", especially in the context of letting premises?
This is the most controversial proposal in the Bill; indeed, it is outrageous. It is also very vague. We have received representations from the IMRO and the Irish Hotels Federation. There is a conflict here. Tourism is under development in my area, including small businesses, such as bed and breakfasts. These provide a small livelihood to those involved. It is unacceptable that patrons of these premises would have to pay royalties every time they turn on a television or radio. This provision should be deleted.
I agree with previous speakers on the hotels issue. It is important that the licensing bodies or collection agencies be required to register with the State. There has been a great deal of lobbying on this issue, with particular reference to the unfairness of hoteliers having to pay royalties in order to have televisions on their premises. That poses the question whether they must next add on the cost of television licences. A precedent would be set whereby licences would have to be bought for televisions in every room, even though one licence currently covers a premises. The Minister of State should outline his opinion on this issue.
I am delighted the major political parties aread idem on this issue, which has been a major concern. A charge should not attach to hotel bedrooms for the use of copyright material. Deputy Stanton suggested a discrete charge for admission. I do not know whether BSkyB will charge consumers to view the Mike Tyson fight. However, I am not sure whether “discrete” refers to the mathematical interpretation of the word. I want to know more about this charge.
It would be safer for the Deputy to take that up with the Minister of State rather than with Mike Tyson.
I am glad that there is a united front on this section. It would be the thin edge of the wedge if guesthouses, hotels, hospitals, etc., had to pay royalties for having televisions on their premises. BSkyB has a monopoly on sport in England and such a charge would lead to a similar position here. It cannot be allowed and I object to it also.
I also have difficulty with this charge. When this matter was discussed previously at a committee meeting, I said that we were not in the business of foisting a new set of Dick Turpins on small businesses, to act like highwaymen by adding charges and setting fees for them. This is one of the most reprehensible aspects of the Bill.
I am discussing amendments Nos. 72 and 139, which have the same purpose as amendments Nos. 4 and 5. The question of playing sound recordings and broadcasts in hotel bedrooms and other similar facilities has been raised by the hotel industry. It made a submission to the committee and has made detailed representations to me along with others on many issues. This issue has raised considerable concern in the hotel industry, which has been conveyed to me by Members of all political persuasions. I considered their views and have been persuaded on balance that it would be appropriate, at least for the time being, to maintain the exception allowed for playing of this type under the Copyright Act, 1963. It is a minor exception to copyright pending further consideration.
Consequently amendments Nos. 72 and 139 re-enact the old exception in a modernised form in both the copyright and the performers area. It has been accepted that this is a complex matter and that we are trying to amend our laws in line with various EU directives and other legislation coming down the line. There is a legal issue in this regard, however inoperable Members may view it. I agree with them because at the end of the day we are politicians who must listen to genuine representations which are made and must accept the work of this committee in trying to produce the best legislation.
In other jurisdictions this regime is in place. The entering into force of the proposed EU directive on copyright in the information society is likely to contain significant explicit restraints on copyright exceptions, which will require a further re-appraisal of whether the continuation of this exception is acceptable in EU and international law. There will be work to do in this regard, whether by this or a future Government. Ministers and officials have work to do at EU level to try to ensure that this does not go ahead. It is terribly legalistic.
This has been an education for me. Aspects of the legislation have resulted from international obligations. However, having listened to the arguments of members, I am prepared to accept, at least for the time being, that this question does not require further examination. It is an issue which must be addressed by a future Administration. My amendments will accommodate the views of members. There is no need for the definition of "cable programmes" suggested by Deputies Rabbitte, Owen and Stanton.
The Minister of State's consideration of this matter and subsequent amendments is welcomed.
Will he come back to the committee with a more detailed explanation of a "discrete charge"? Will the exception apply to prisons, boarding schools and caravans?
I am not sure whether the Minister of State is saying that my amendment is unnecessary in the interpretation section or whether it is redundant because of his amendments. They are not directly analogous and I do not know of an international obligation that imposes a duty on us to have hoteliers, for example, collect royalties in respect of televisions in hotel bedrooms. He said that an information society directive is coming down the track and that we must accept it automatically. What type of society do we want to live in? It is to take the situation to preposterous levels to suggest that we will live in a society where, although we accept that one would be as likely to expect a television in a bedroom as a bath, that royalties are to be collected and paid in respect of it.
The Minister of State's note is sketchy enough. He has not explained the provenance of the requirement in the first instance. I know a little about the origins of some of this Bill and, to be fair to the Minister, it has been the subject of serious lobbying. Any group in this society is perfectly entitled to legitimately lobby the Minister. However, it is his job to make a call and it is not only the obligation of this committee but its duty to try to influence that. Powerful forces have been at work in terms of influencing this legislation. I do not recall this being in the legislation at the stage at which I was concerned with it. Where did it come from? Has the collection agency caused it to be inserted or is it our scrupulous anticipation of what might be the situation on the European mainland? It is an appalling vista if the European mainland could regulate this and, as Deputy Stanton said, one would have to pay royalties for having a television in a caravan at Brittas Bay. If that is how the rest of the EU wishes to organise itself, we must assert a different point of view. Some of the countries partial to this are careful to be distinctive about protecting their cultural ethos in other areas. I cannot see anything in the Minister's contribution on Second Stage or in the Seanad which enlightens us on this.
I am not sure what subsection (2) of both amendments mean. Subsection (1) does not apply in respect of any part of the premises of which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed. What does that mean? Does it mean that if one enters a public house and a section is curtained off because a big screen is showing Manchester United playing Aston Villa, for which there is an admission charge, a discrete charge may be levied? If part of a hotel is broadcasting "Bull Island" and charging admission, will a discrete charge be levied? The Minister has not explained the circumstances of the discrete charge.
I have the same difficulties as Deputy Ardagh in measuring what "discrete" means. The Minister is a very discrete politician in a constituency where it is difficult to be discrete. However, I do not know how to measure it - is discrete here as large as Deputy Séamus Brennan's millennium candle? How do we measure this discrete charge? It is a reasonable question, the answer to which people will want to know. If we withdrew our amendments and gave the Minister the nod, many people would ask what it means. I do not know what it means.
Subsection (2) of section 93 refers to a discrete charge. Discrete means specific. Deputy Rabbitte clarified it as he went along. Clearly there is a distinction in terms of a hotelier screening a public performance in a lounge for which there would be an admission charge and where it would be logical to charge royalties. The case for charges would be a matter for interpretation by the courts if that arose. This is nothing new. However, this amendment makes a distinction between a private performance - I agree with the Deputy about a television in a bedroom - and a discreet, specific charge made for admission in a part of a hotel. This difference is clearly established in subsection (2).
With regard to international copyright law, the Deputy will know from his previous occupancy of this Ministry that obligations under the Berne Convention and the WIPO copyright treaty require that exceptions be limited and they do not interfere with the normal exploitation of works by rights holders. That is the thinking behind a great deal of this legislation, as we will see later when we move further into its complexities. As a practising politician, I agree with Deputy Rabbitte on this issue. However, I am also demonstrating that where there is a charge for admission, the normal royalties will apply and the hotelier will be charged in those situations in order to protect the rights of rights holders As the Deputy will appreciate from his involvement in this area, that must be the underlying motivation of our work.
I asked three questions and I am still awaiting answers.
I also wish to know what happens if a discrete charge is not made for admission to the part of the premises where a sound recording, broadcasting or cable programme is to be heard or viewed.
It would still be a public performance in a public place and a matter of interpretation between collecting agencies and the businesses involved.
Is a discrete charge a cover charge, to put it in the vernacular?
However, in many cases there is no charge.
Or there could be an underlying charge.
Perhaps the price charged for drinks. I am reluctant to start a debate on the price of a pint.
What about the price of beef lately?
There are many clubs with premises and there are no charges in most of them. They have many rooms off main halls with small televisions. How will they fare?
This section is specific to hotels. The area to which the Deputy referred will be dealt with in detail later in the Bill.
Deputy D'Arcy's question is just as valid in respect of hotels. It is not customary for a charge to be imposed in respect of where a sound recording, broadcast or cable programme is to be heard or viewed. For example, presumably there was a charge to see Joe Dolan play at the Gleneagle Hotel in Killarney on millennium eve. However what transmission or broadcast is envisaged which makes this section necessary? The only one I can think of is a sporting occasion. In most such cases the hotel would not impose a charge, discrete or otherwise. They may well, as the Minister of State hinted, put 5p on the pint or whatever else, but they would not impose a charge. What is the need for this saver in the two amendments the Minister of State has tabled? Why do we need this subsection? How does it differ from thestatus quo?
Thestatus quo stems from the Copyright Act, 1963. With regard to how private bedrooms might be affected, we agreed that royalties cannot be collected for a private performance.
The Deputy gave a good example of a public performance when he mentioned a sporting occasion being relayed in a hotel. The argument is that it has a commercial benefit to the hotelier. We are maintaining thestatus quo but bringing it into a more modern context, and the amendment deals with that. An exception is made for private bedrooms. We are, in that sense, maintaining the status quo, but we spell it out as regards public performances. The example the Deputy gave of a sporting occasion is a good one.
I understand that in some hotels in Europe there may be an extra charge if a television is provided in a bedroom. That would be another example of commercial benefit. There is an extra charge for a bedroom with a television as compared with one without one. That is another commercial aspect to this debate.
Forgive me for being still unclear. The Minister of State referred to public performance. Where does public performance come into it? I see no reference to public performance. The subsection states the exception will not apply where there is a discrete charge for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed. Surely, that is not a public performance, but something entirely different. This is merely the relaying of a sporting occasion or whatever.
If the All-Ireland final were to be relayed in a part of the premises of Carroll's Hotel in Ballinasloe, it would be most unlikely that a charge, discrete or otherwise would apply. What happens in that case? I know thestatus quo is the 1963 Act. How does this new measure differ from the existing position, because I am not clear about that? Surely it is rare for a charge to be imposed, and the All-Ireland or a GAA match is an example. If it is rare, what is the perceived need for the subsection?
Can we get clarity on that?
Why does section 93(1) need to be qualified by 93(2)? If the latter is concerned with what is, in effect, a public event or occasion, then that is covered elsewhere. A potential weapon is being handed to the interests which want to dominate in great detail the royalties they can obtain from hotels, guesthouses, etc. They could bend the law to their advantage to essentially set at naught section 93(1). Section 93(1)(a) and (b) are limited in that they refer to sleeping accommodation and amenities exclusively and mainly for residence or inmates. Could the PPI or others argue that access to the private quarters or private reception room of a hotel is covered by a discrete charge contained in the accommodation charge? Why does the Minister of State need to have that section when what is clearly public is covered in detail elsewhere?
When I stay in Dublin for two, three or four nights, I stay in a guesthouse and am charged a specific rate for the room and not for my sleeping accommodation. A specific discrete charge is made for the room. This subsection is superfluous. It could be used to say that, as I am being charged a specific rate for the room, it is a discrete charge and so royalties must be paid. If there is another part of the hotel or guesthouse to which the public has access, then any performance in that area is public and is covered elsewhere in the Bill. I do not see why this subsection is needed.
I have listened carefully to what has been said. There is a need to examine section 93(2), if only to ensure it is completely necessary. I have given some valid arguments regarding commercial benefits. Our purpose is to make an exception for private bedrooms and we are agreed on that. Perhaps we could tease out how to proceed from that point. Questions were asked about boarding schools and prisons. Prisons are covered so the exception would apply to them. My understanding is that it would apply to boarding schools if there were televisions in every room. That did not apply in the boarding school I attended, but that was many years ago. Obviously the exception would apply in those situations. I suggest that I examine section 93(2) in light of what members have said.
As regards how to proceed from that point, if the Chairman can accommodate it and the committee can agree to it, I propose that we agree on section 93(1)(a) and (b) and that we return to them on Report Stage.
We are dealing with amendments Nos. 4 and 5 at present. Perhaps, if they were accepted, we could return later on Report Stage to the Minister of State's points.
Perhaps Deputies Rabbitte, Owen and Stanton could withdraw amendments Nos. 4 and 5 at this stage with the right to table them again on Report Stage should the matter not be resolved by that stage.
I do not wish to delay the committee but I have difficulty with something I do not understand. I still do not understand the provenance of the necessity for subsection (2). However, I do not want to look a gift horse in the mouth either if the Minister of State is signalling that he will drop it. Say the public performance concerned, if we use that term, is the Mike Tyson fight - I do not know if this is the case - but are hotels likely to charge for admission to that? If there was a charge, in whom is the right invested and to whom do the royalties go? Is IMRO the organisation?
It would be PPI in relation to the sound recording and IMRO for music.
So even though the hotel would already have paid for the right to broadcast that in the first instance, the separate royalty levy——
There would not be much music in a Mike Tyson fight, or perhaps there would be.
The hotel would already have paid for the right to broadcast under the Murdoch arrangements or whatever, but despite that there would also be royalties levied.
On the basis that it would be a public performance in the bar, yes, there would be that additional element to it.
A lot of this is about fairness and equity as well as artists and others getting a fair return for their labour and so on. I fail to see how the imposition of royalties in circumstances like this is either fair or contributing to anything other than an inevitable increase in the price of drink in the said bar. I do not see the economic sense to it and fairness does not require it.
It would have a pulling power, as the Deputy will appreciate, and one would have an increase in the number of people present. The Deputy has given some good examples of gaelic football matches being shown in pubs, which would attract more customers and would lead to more profits for those pubs. We are obviously getting into a very commercial area. I propose to look at subsection (2) and come back to the Deputy on Report Stage. I urge Deputies Rabbitte and Stanton, as the chairman suggested, to withdraw their amendments and we will look at it. It is our job to scrutinise this very closely, but we have done that and we will come back to my amendments at the right time.
Thank you. In light of what the Minister of State has said, will Deputy Rabbitte agree to withdraw amendment No. 4?
I ask Deputy Stanton not to move amendment No. 5.
Before that, one part of my question related to caravans.
Depending on the circumstances but I would be happy to come back to that matter on Report Stage.
Amendments Nos. 6 and 7 are related and may be taken together.
I move amendment No. 6:
In page 26, line 31, after "school" to insert "or university or other third-level institution".
The purpose of this amendment is clarity, as "educational establishment" appears throughout the Bill. Here "educational establishment" is defined as a school or any other educational establishment prescribed by the Minister. When the dons were with us - the university people, not Wimbledon Football Club - they suggested that we need to be clear about including universities, but if we include "university" we need to use a generic term for the other third level institutions so that it is not just "school" but school, university or third level college. That clarity is necessary.
I can be constructive on this as well. In the interests of clarity I propose to accept amendment No. 7 but not amendment No. 6. Both amendments arise from a similar aim to secure clarity in the legislation on this point. In this regard, amendment No. 6 seems too general in terminology, but in accepting amendment No. 7, in practice there can be no doubt that all bona fide third level institutions would certainly have been prescribed by the Minister in any case and the power of prescription is vital to ensure that the wide variety of third level educational institutions already in existence, not to mention those that may come into existence in the future, can be catered for. Nevertheless, it would be useful in the interests of clarity to accept amendment No. 7 and I thank Deputy Rabbitte for putting this point forward.
I have no proprietorial attachment to amendment No. 6 as compared to amendment No. 7, but does the Universities Act, 1997, include institutes of technology and all the other third level colleges? Am I voting for an amendment here that excludes Tallaght Institute of Technology, for example?
We have already made reference to "any educational establishment prescribed by the Minister", which would cover the Deputy's concerns.
The understanding is that under section 54 the Minister will definitely prescribe what are called "other third level colleges". If that is the case I am happy to withdraw amendment No. 6 and support amendment No. 7.
I move amendment No. 7:
In page 26, between lines 31 and 32, to insert the following:
"(b) any university to which the Universities Act, 1997, applies;".
I am pleased the Minister of State is accepting this amendment. Universities have a critical role in the creation and transmission of new knowledge. We live in a knowledge and information based society so it is important that we are clear on the inclusion of universities here. I thank the Minister of State for accepting this amendment.
I move amendment No. 8:
In page 26, between lines 37 and 38, to insert the following definition:
"'electronic format', where the written material is made available in a digital format, means material that can be read by a computer;".
This amendment arises from the need to provide easier access for people who are challenged physically or otherwise to books and other material in electronic format. The amendment refers to "written material" but perhaps it should also refer to access to all kinds of material by way of computers. This relates to a later amendment. This issue is not addressed, particularly where material is digitised and we should try to deal with this matter.
The problem with this amendment is that it uses technology specific terms which, however current, could cause difficulties in defining electronic formats in light of unforeseeable technological developments. This problem has arisen with terms such as "cinematograph film" as defined in the Copyright Act, 1963, and whether this definition includes video tapes. I appreciate the point made by the Deputy but terminology used in the 1963 Act has caused some confusion as to whether the term to which I referred, which obviously includes film and cinema, also includes film on video tape. I would prefer the term "electronic format" to be left to define itself or to be left to the courts to define, if necessary, on the basis of the facts of particular cases. I ask the Deputy not to press the amendment and assure him that I will keep this issue under review and if events suggest that a definition is necessary I will not hesitate to devise an appropriate legislative proposal.
I tabled this amendment because I was concerned about making material more readily available to people who are physically challenged. I am anxious to ensure that material will be made available to people by way of computers. Can the Minister of State address that issue? Perhaps we will come back to it in a more specific manner later? At that stage I might be happy to withdraw the amendment.
I concur with the Deputy's wish to ensure that those with disabilities are treated favourably by the legislation and assure him that I will table an amendment for modified works and this whole area.
I thank the Minister of State and withdraw the amendment.
I move amendment No. 9:
In page 27, subsection (1), between lines 6 and 7, to insert the following definition:
"'the Internet' means any network of computers and the technology which links them to which members of the public have access either with or without charge;".
This amendment was moved in the Seanad by my colleague Senator Ryan who made a good argument for including a definition of the term "Internet". I do not know the source of the definition used by the Senator but it seems a simple and straightforward definition of how we understand the Internet. Given the wider scope of this Bill to which we have referred it seems desirable that such a definition be included in the legislation. My recollection of the Seanad debate is that the Minister of State indicated that there was merit in this proposal and that he would examine the issue. I did not read the Report Stage debate in the Seanad and perhaps he did come back on this issue. However, there was no response on Committee Stage other than to say that the matter had been brought to the Minister of State's attention, that it seemed to warrant attention and so on. It is desirable that the legislation should include a definition of the Internet and it is all right by me if the Minister of State has a better definition.
I thank the Deputy for raising this issue. Senator Ryan and I discussed this issue in the Seanad. In thanking the Deputy and the Senator for their work in helping to clarify this point I am still not convinced that the inclusion of a definition of the Internet would improve the Bill. The difficulty is that for a term in such common use there is no generally accepted hard and fast definition of what the Internet actually is. Relatively simple definitions of the whole phenomenon can run to hundreds of words and shorter definitions such as that suggested in the amendment, which is as good a shot as anyone could make at it, may give rise to misinterpretations. For example, I am not satisfied that the definition proposed by the Deputy could not be read to include some publicly accessible closed computer networks or intranets. For the moment I would prefer to allow the term "Internet" to define itself on the basis of the usual common sense understanding of what it consists of rather that adopting definitions which may be insufficiently flexible or which may produce unintended side effects.
However, the question of the specific treatment afforded by copyright law to electronic networks must be kept under ongoing review. A specific occasion for review is likely to arise with the adoption of the proposed EU directive on copyright in the information society which I mentioned earlier. Therefore, while I am unable to accept this amendment or any other amendment with similar effect, the Deputy has raised a serious point which I will keep under ongoing review. The legal advice is that we should not get into defining "Internet".
I am somewhat puzzled why that legal advice was received. I gather the Minister of State is suggesting that it is not possible to define the Internet. I am genuinely bemused by that. If one looks at the Bill, as passed by the Seanad, everything which is referred to in any way in the Bill is carefully defined. The terms "author", "broadcast", "building", "cable programme", "cable programme service" etc. are all defined. It seems to me that after many years' experience of broadcast technology, we would all be aware what a broadcast is. However, the Internet is a relatively new and revolutionary system of communication, certainly the most revolutionary since the advent of television. The Minister of State has advanced a number of arguments on matters in the Bill on the basis that technology is evolving all the time and that the Bill must be adapted to modern circumstances.
The definition of the Internet which I recommend, which was devised by my colleague, Senator Ryan, is "any network of computers and the technology which links them to which members of the public have access either with or without charge." I do not know whether it is possible to confuse that definition with the definition of an intranet which is an in-house arrangement whereby a defined group of people have access to the net. The explanation offered is rather odd in any event, namely that we will not define the Internet because we cannot come up with a definition.
Deputy Rabbitte referred to some of the definitions contained in the Bill. The fundamental point here relates to our previous discussion on electronic format and the manner in which that might be defined. We are endeavouring to keep the Bill technology-neutral. The Deputy alluded to that in his contribution. If, in endeavouring to define the Internet, there is a danger of failing to do that, the definition should be avoided. I feel this area should be monitored in the months and years ahead but, at this point, I cannot do any more than share the advice I haveESB3, No. 1 - D
received, which is the strongest argument of which I am aware to leave things as they are, in regard to whether we include a technology-specific definition in the Bill. We must endeavour, as far as is possible, to keep the Bill technology-neutral. I appreciate the efforts of Senator Ryan and Deputy Rabbitte. We discussed this issue at length in the Seanad but I suggest that we keep the Bill technology-neutral.
Is the Minister of State not concerned that if the Internet is not defined it will leave it open to interpretation?
The same argument could be used for many other definitions, particularly with regard to technology. I do not think it would serve a useful purpose to define something, the interpretation of which may change. That is the advice we have received. While trying to do something worthwhile, we may in fact do the opposite.
Is the Internet referred to in the Bill?
How is it defined in those references?
We will leave it to the courts and other relevant parties to interpret the terminology used. Section 39(1)(a) refers to making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of works through the Internet);
I understand that is the first reference to the Internet in the Bill.
Is the amendment being pressed?
I am not sure I want to divide the committee on this amendment. However, I reiterate that I find it somewhat odd to hear a Minister of State saying that the courts are to be invited to define the term "Internet" for us. That would be most unusual. The courts would at least be entitled to know what the Oireachtas had in mind when the legislation was enacted. Whereas Internet technology is relatively new, it did not come upon us overnight and it must be within the bounds of human ingenuity to come up with a definition. We have defined a great many matters which are likely to be less central in terms of the Bill's functions. By failing to be specific, it seems we are inviting litigation. I do not wish to obstruct the committee at this point but I will reserve my right to raise the issue again on Report Stage. I gather that the Minister does not intend to consider the issue in advance of Report Stage——
If it would be helpful, we will look at this issue in advance of Report Stage. Some worthwhile points were made. However, the advice we have received is that it is possible that the definition of the Internet may change. I will not look into a crystal ball and come up with a new name but there is a fear that the definition may change. I would be happy to take account of the comments made and consider the issue in advance of Report Stage.
I thank the Minister.
I move amendment No. 10:
In page 27, subsection (1), between lines 40 and 41, to insert the following definition:
"'producer', in relation to a film or sound recording, means the person by whom the arrangements necessary for the making of the film or sound recording, as the case may be, are undertaken;".
Section 18(10) of the Copyright Act, 1963 defines "maker" in relation to a cinematograph film as "the person by whom the arrangements necessary for the making of the film are undertaken". Article 2 of WIPO Performances and Phonograms Treaty, 1996, contains a definition of the producer of a phonogram. Representations have recently been received in my Department which indicate that the new Bill should define the term "producer". Having considered the matter further, I agree that a definition would be useful in the interests of clarity and, accordingly, the above amendment which defines the term in relation to a film and sound recording is being proposed.
This amendment exemplifies our recent argument. It is deemed necessary to define the term "producer" but not to define the Internet. I recommend that members who have not yet seen Mel Brooks's film, "The Producers", should view it soon as it is an essential study in this area. The problems it throws up are interesting. There is no reference to "director" in this or other sections. What is the position in terms of the definition of a director in the case of a film? A producer is not the same as a director in film. A record producer is not the same as a film producer. One could confuse matters further by pointing out that producer and director have different meanings in television. This raises the question that hangs over the entire Bill - the different European and Anglo-Saxon models. A director in France would be a producer in the United States. There is a definition of "producer" but "producer" has different meanings in different art forms. He is definitely not a director in film. We ought to be clear and include a definition of both. Why is there not a definition of "director"? Broadcasting, sound recording and film are all different.
We are missing direction in this area. We are confining it to film and sound recording, but there are also producers in musicals and stage shows such as "Riverdance". Why confine it to those two areas?
On the absence of a definition of a director, my understanding is that there is no international agreement which gives a definition of "director". We will try, however, to look at the question before Report Stage.
In reply to Deputy Stanton, we are talking about authors, "persons by whom the arrangements necessary to make a film or sound recording, as the case may be, are undertaken;". This is being inserted so they will be authors.
I am not entirely sure how that works. As I read it, this is just another definition in relation to film or sound recording. It goes on to say that means the person "by whom the arrangements necessary for the making of the film or sound recording, as the case may be, are undertaken;". I do not understand what that has to do with the author.
It is in Chapter 2 of the Bill. This is a specific answer to Deputy Stanton's question. When we talk about a producer, we are talking about an author in relation to sound recordings and film, but when we talk about a musical work, we use the term "author".
That is in Chapter 2.
Deputy Stanton asked why we did not use the word "producer" or include musical works in this amendment. We used the term "author" in relation to a musical work.
The term "author" is not used except in relation to a musical work.
We use the term "producer", which we have now defined, when speaking of the author of a sound recording or film. When we come to a musical work, we would not use the term "producer" but instead would use "author".
This is section 21.
I am making the point in response to Deputy Stanton who asked why we did not include musical works in the amendment. The term "producer" relates to sound recording and film.
The Minister and I are at cross purposes. I am talking about a dance performance for which someone would make arrangements, the choreography of which could be copied and could be written down. Is that covered? Does the definition of "author" include that?
Sound recording or film is produced. The author in that instance is the producer. We are getting into another area which I will have to examine further.
I am talking about the producer of a show.
The producer of choreographers and the other elements involved in a live show? That is a different area of artistic work. We deal with these creators in another part of the Bill. This is a specific area of artistic work and copyright and the film industry has made representations to us about it.
The Minister draws our attention to section 21 and his point is that "author" is the generic term used in sound recording for "producer" but, in the case of film, it could be the producer and-or the director.
It is a broad area of terminology. I can see there are issues to be clarified when it comes to the broad definition of "author". I introduced that reference in the context of this narrower definition of "producer". This is required in film and sound recording. I am happy to deal with the broader definition of "author" at a later stage.
In terms of our own attempts to develop an indigenous film industry in this State, why was the advice given that it was necessary to insert this definition of "producer"? Why not have a definition of "director"?
The definition of "maker" was used in the 1963 Act meaning the person by whom the arrangements necessary for the making of a film are undertaken. We are updating that terminology.
Amendments Nos. 12, 13 and 14 are related to amendment No. 11. Amendment No. 147 is cognate with amendment No. 12. Amendments Nos. 11 to 14, inclusive, and amendment No. 147 will be taken together. Is that agreed? Agreed.
I move amendment No. 11:
In page 27, line 43, to delete "or effect".
It is sometimes difficult to understand new technology. Let us take the phrase "or effect" in amendment No. 11. My understanding is that the Bill almost outlaws protection defeating devices. My information is that there are devices which are designed to be lawful and protection defeating as well. Someone mentioned CD burners which I had not heard of before. When I see the words "primary purpose" I wonder why "or effect" is necessary. This is linked to other parts of the Bill. Amendment No. 12 proposes to insert the words "for infringing purposes". Amendment No. 13 proposes that the words "without authority" be deleted and amendment No. 14 proposes to delete "unauthorised" and substitute "unlawful". We are dealing with law and if something is unlawful is it presumed to be unauthorised? My amendments would tighten up the definition and would allow the technical control of the marketplace to be conferred on the content providers and not be totally hamstrung. Modern technology might allow protection defeating devices lawfully to copy one broadcast but not the next. This area is extremely technical. Perhaps the Minister of State can simplify it for us.
This is quite technical and I appreciate what the Deputy has said. This group of amendments concerns the precise circumstances in which the protection afforded by the Bill to technological measures designed to protect copyright should operate. I cannot accept any of the amendments for these reasons. I am convinced that the unamended text has the correct effect. For example, the deletion of the phrase "or effect", as proposed by amendment No. 11, would leave the provision concerned entirely reliant on the purpose of a protection defeating device, potentially a difficult thing to prove in itself. On the other hand, it is hardly unreasonable for the primary effect of a device to be taken into account where this effect is unauthorised circumvention. That is the net point. This refers to the point made earlier that we need to tread warily in relation to technological protection measures. As of now, none of these amendments would be advisable. I am aware of the importance of the issues raised by the Deputy in these amendments and I will bear them in mind in the context of Ireland's position on the EU directive on the information society, to which I refer for the third time and to which I will probably refer again and again.
I appreciate what the Deputy has said, but we need the definition as I have laid it out. What is proposed by the amendments would damage the impact of this section of the Bill.
This is extremely complicated. Will the Minister look again at this area in the light of my amendments and return to it on Report Stage? I will not press the amendments but, given the amount of time we have had, it might be advisable to look at them again.
Of the four amendments, amendment No. 12, which proposes that the words "for infringing purposes" be inserted after "circumvent", has some benefit. I can make no commitment in this regard but I will look at the amendments again, in response to Deputy Stanton's suggestions.
Will the Minister undertake to look at some of the technology which is now available and is being used?
Absolutely. There is a danger that we would promote some of these technologies to a level where technological protection becomes something of an intellectual property right in itself, independent of its base in copyright. This is a very technical area and I am happy to look at these amendments before Report Stage, particularly amendment No. 12.
I thank the Minister for that. In other jurisdictions, particularly the United States, technical legislation of this sort is causing great difficulty and has the effect of outlawing necessary and legal devices. A balancing act is called for.
It is also causing problems at EU level.
I move amendment No. 15:
In page 28, subsection (1), line 42, after "program" to insert "other than in Part II, Chapter 7, and in Part II, Chapter 7, 'work' means 'literary, dramatic, musical or artistic work or film"'.
The parts of the Bill dealing with performers' rights and rights in performances are carefully designed to exclude rights in performance, that is exlcusive recording rights, from the scope of moral rights. Representations have been made to me recently pointing out that the failure to draw a similar distinction in the field of copyright between what is usually recognised as authors' works and those works covered by neighbouring type rights, such as sound recordings, broadcasts, cable programmes and databases is contrary to the proper purpose of moral rights and could give rise to considerable uncertainty and confusion should the proprietor of, for example, a sound recording attempt to assert a moral right in such material in Irish law. This amendment is designed to eliminate this flaw in the present text of the Bill.
Are there any questions on this amendment?
Yes. The Minister of State has stated the purpose of the amendment but I do not understand why this is self-evidently the case. In a Bill which has gone out of its way to abolish the traditional distinction between primary copyright and neighbouring rights, why does the Minister of State seek to insert a distinction here which denies one category, moral rights? Why are moral rights restricted to this new definition of 'work'?
There was a time when copyright was merely a property right but it has evolved to the point where an entire section of this Bill is devoted to moral rights. If Handel were alive today he might take an exception to 'Messiah 2000' or he might not, but if he took exception to it this Bill would provide him with a remedy for his objections. I do not understand why the category of neighbouring rights is entirely excluded. It is not difficult to think of a situation where a person's reputation might be damaged as a result of a work being pirated, manipulated or altered and where he or she ought to have the same remedial access as someone in the original category of literary, dramatic, musical or artistic work and so on.
The purpose is to apply moral rights in the areas to which we have referred. We are talking about where the author is clearly defined as an actual person. We are saying that it is only right that a record company, for example, should not have an equal moral right. When talking about the moral right we are talking about the paternity right to be identified as the author, or the integrity right to object to the derogatory treatment of the work. It is appropriate and correct to make this clear definition to limit moral rights to a natural person in these cases.
The amendment reads, ". . . after "program" to insert "other than in Part II, Chapter 7, and in Part II, Chapter 7 . . . ". I take this to mean everything inside and outside Part II, Chapter 7. Does it include the entire Bill?
I also had a difficulty with this but ended up reading it to mean that the definition included in the Bill will apply other than in Part II, Chapter 7 and that in respect of Part II, Chapter 7 "work" will mean literary, dramatic, musical or artistic work or film. Perhaps it should be stated more clearly that in respect of Part II, Chapter 7 the definition of "work" will be restricted to the categories listed.
While I appreciate it may sound convoluted when taken out of context, Part II, Chapter 7 deals with moral rights. I have no doubt that the correct references have been used but I will ask my officials to double check them. Part 11 Chapter 7 deals withk the moral rights area and then in this context "work" means literary, dramatic, musical or artistic work or film. That limits the moral rights to the author of those works and that will be a person.
It does not make sense to me. The amendment reads, ". . . other than in Part II, Chapter 7, and in Part II, Chapter 7 . . . ". Does that include everything inside and outside Part II, in other words, the entire Bill?
If the Bill can be made more user friendly we will do so. I will ask my officials to look at restructuring it. We are doing this to ensure moral rights apply to the natural person. This is the right thing to do. If work needs to be done on the restructuring of the language, I will have no problem in doing that and coming back on Report Stage on it.
It is a question of clarification.
The first part of the amendment reads, ". . . other than in Part II, Chapter 7 . . . ". Are we right in assuming, therefore, that in respect of Part II, Chapter 7 the definition will be restricted to that given in the amendment? It is not clear that that will be the case.
I will endeavour to clarify the matter. The point is valid.
I am totally confused. What is the Minister of State's intention in including this definition?
The purpose is to limit moral rights in specific areas and to ensure "author" is clearly defined and that the natural person in this case being the author, will have moral rights. In those cases they are very specific. One very important area relates to the 'integrity' right to which I referred earlier. An author can object to the derogatory treatment of his or her works. It is important in copyright legislation to clarify that, and to have a bias in favour of individuals rather than, for example, a record company. It is that area with which we want to deal, but I accept that the language needs to be clarified. I will ask my officials to do so.
There is an issue here with regard to journalists and to integrity and paternity rights, so it should be related to that in some way.
We will come to that fairly shortly.
The Minister of State did not tell us who made representations to him to have this done. I can only presume the sound recording companies are not interested in moral rights but in property rights, that so long as they have the property rights they are happy enough and to hell with the morality of it and we can live with that so long as the money keeps coming in.
I will have no problem in checking that matter for the Deputy——
Who has copyright of suggestion?
——but representations have been made from all areas.
Amendment No. 17 is related to amendment No. 16 and they may be discussed together.
I move amendment No. 16:
In page 29, between lines 7 and 8, to insert the following subsection:
"(3) A reference in this Act to a prescribed archive shall include references to a prescribed museum.".
Representations have been received requesting that museums be given similar exceptions to those already given to libraries and archives in the context of the Bill. I agree with the view that museums, like libraries and archives, are usually institutions established for the public benefit and contain collections which are frequently funded by public money. Under their constitutions most museums have, with other objectives, a broadly educational remit and are, therefore, in a position analogous to that of libraries and archives. Having considered the matter further I am of the view that museums should be given similar exceptions to those given to libraries and archives.
This is an important amendment and I welcome the Minister of State's decision. Obviously, our museums ought to be treated similarly.
I move amendment No. 17:
In page 29, between lines 7 and 8, to insert the following subsection:
"(4) A reference in this Act to an archive shall include references to a museum and a reference in this Act to an archivist shall include references to a curator.".
What is the view of the Minister of State on the extent of regulation that will be required in the scope of section 7? Is it his intention to cause the Bill as a whole to come into operation on the same day or does he intend to implement it incrementally?
Regulations will be required in the case of libraries and educational establishments. There may be a need to implement the Bill incrementally.
I wish to raise a couple of points on the section. The committee will recall that it was in regard to this section, which deals with the subsistence of copyright, that Mr. John Gordon SC made a detailed submission to us. It is curious because it relates to the discussion we have just had which sought to draw a distinction between primary copyright and neighbouring rights. In his submission Mr. Gordon claimed that at a stroke the Minister has abolished for all time the distinction between different types of copyright. He went on to explain how primary copyright resides in the person who has created the particular unique work and that secondary or neighbouring rights relate to the category to which the Minister has just denied moral rights. If I recall correctly, he said that between 1963 and 1999 there has not ever been a demand in public - I do not know whether there has been in private - to have this distinction abolished. It is a difficult matter on which to frame an amendment because either the Bill is constructed on that cornerstone or it is not. I have not heard the Minister argue the case for making what Mr. Gordon considered to be a fundamental change in the traditional subsistence of copyright that abolishes the different categories.
Arising from that there are all kinds of consequences throughout the Bill and, as the Minister said, we were verging on a commercial matter. There is very little in this Bill that is not a commercial matter. That is why we have had such intensive lobbying about it. In my own case I was preoccupied with another little matter at the Committee of Public Accounts during the lobbying and I had the greatest excuse to escape. Nonetheless I am aware of the importance attached to this by people who know what is involved in copyright today. As this is a very important matter I would like to hear why the Minister thought it was necessary to make this fundamental change.
I seek clarification on the rights of copyright owners in relation to works, including the exclusive rights to authorise copying and reproduction and making available to the public or adaptation of a work subject to the permission of legislation. How different will the position be under the new legislation?
When the Bill was prepared we gave primary copyright protection to sound recordings. Section 37 deals with that whole area. I listen to arguments put to me from all sides on all types of issues from newspapers, industry, journalists etc. which is another area of contention in the Bill. The official reason for pursuing that and giving primary copyright protection to sound recordings would have been on the basis that that was the trend internationally at EU level. That is the advice. I listen carefully to the arguments put by Mr. Gordon SC and others who have made a case as well as Deputies across party lines that we should retain the position in relation to sound recordings and apply secondary rights in that area. I consider that is the right decision. None of us has a monopoly on what is precisely correct in any given situation especially in a Bill of this size and complexity. It is my duty as Minister of State to listen to all the arguments. Deputy Rabbitte said he was involved in all sorts of other issues. Equally I could say there are all sorts of documents and issues that I, as Minister, have to deal with - I have no objection to that - but this area is one to which I have had to devote much time to making the right decisions. I came before this committee for the purpose of listening to debate and argument on all areas. I make no apology for making change where change is appropriate. I shall deal with this matter in greater detail on section 37.
Unfortunately an exception is to be provided for derogating from those rights. Who gives the ruling on a derogation in the case of schools and educational institutions which have that right?
That area is provided for in the exceptions, from section 48 onwards.
As the Minister said, this is probably the most fundamental change in the legislation since 1960. It gives much power to collecting agencies and if they become the primary copyright owners my understanding is that they can prevent people from playing music because they would have the same rights as the actual author of the original work. If that is the Minister's intention we would have grave concerns.
I have no problem with this discussion but I will be dealing with this matter in detail. I am not suggesting Deputies will be totally satisfied with everything I do or say but they will be more reassured in relation to the last point about exclusive rights and giving one side in a particular case more clout. That issue will be dealt with in my amendment. I think I used the term "equitable remuneration". Deputies Rabbitte and Perry have raised an important amendment. My preference is to deal with it when we come to it.
I was just about to plead to the Minister's sense of partisan patriotism and refer to the submission made by Mr. Gordon SC who very astutely relied on the then Minister, Mr. Jack Lynch, in introducing the 1963 Act. I thought if everything else failed that was something that would inspire the Minister to reconsider this drastic change in direction.
It did not go unnoticed. Deputy Cosgrave was around, and Mr. Costello as well.
That is right. I read the debate, as I am sure did the Minister, and if there are arguments of modernity or whatever, I would like to hear them. Why did the then Minister, the late Jack Lynch decide, in 1963, according to Mr. Gordon for good reason "that it would not accord absolute copyright protection to those who manufactured and sold records". It decided "it would be contrary to the public policy of the State to give them such absolute protection". That was a significant matter because it deviated from what was then the English law on which the 1963 Act was modelled. It was in that context that Mr. Gordon went on to say - and Mr. Gordon is someone who follows the law of copyright fairly carefully - that between 1963 and 1999, nobody had advanced a reason in a journal or magazine for changing that fundamental direction. The world may have changed since then - even Fianna Fáil may have changed since then - but I would still like to hear from the Minister the reason we should disown the memory of the late Jack Lynch in the manner in which we are partially doing now.
In regard to the provision for moral rights within this section which provides for protection for performers in relation to the preformance, which is parallel to that provided for authors of copyright works, is that built into this section also?
Does the Minister intend that record companies will be able to insist on receiving payment prior to playing records in hotels, clubs, discos and so on?
It is obvious that the late Jack Lynch and others have provided for a healthy democracy in that I, as the Minister of the day, and the former Minister, Deputy Rabbitte, can listen to a good argument, whether put forward by colleagues in either House of the Oireachtas or by organised lobby groups. We will deal with this matter at some length later on. As the Deputy pointed out, I am reverting to what was provided for by the late Jack Lynch. That is the right course of action for me as Minister. The initial thinking at official level would have followed international trends. That is all I will say at this point.
We have tabled an amendment with regard to equitable remuneration and those members who have read all types of briefing material on this matter, like myself, are aware of the problems between collecting agencies and proprietors. That is an issue which frequently arises and one which permeates the Bill. Our prime concern is to protect copyrights, rights holders and all types of artists. That is my motivation. In this case I am reverting to what the late Jack Lynch proposed many years ago, and I have done that on the basis of having carefully considered all the issues.
In 1963, our esteemed forebears saw a potential problem with the Controller and how it might operate. Both sides in this argument have told us that the Controller system has not operated successfully. From what I can gather from reading the amendments, the Minister has no intention of changing that and is now introducing something else to address the problem caused by the inability of the Controller. I am not making any derogatory remarks about his office - the system he has to work with is wrong. In 1963 it was recognised that the proposed system had potential flaws, but it was implemented to see if it would work. It has not worked. Is it right that we should turn everything on its head because the system has not worked? Will two wrongs make a right in this case? Will the Minister answer the question I asked earlier? Does section 17 mean that record companies will be entitled to insist on payment prior to playing of music in hotels, discotheques and so on as I understand the owners of copyright can do if they are to have the same rights as the original creators.
To answer the Deputy's last question, record companies will not have the right to prevent people playing music in particular situations. I have examined the debate on the Controller and I know problems exist in that regard. As members know, I have introduced amendments giving powers to the Controller to remove an arbitrator and there are other issues which we will deal with later on.
On the question of a tribunal which has been raised, I have committed myself my Department to undergo a study of that whole area. We have given various reasons we believe this is not necessary at this time but it is something which will have to be dealt with at some future date.
On the role of the Controller, with such major legislation it is amazing that his role has not been upgraded to take this more effectively on board. Up to now little has been heard from him in disputes to date. Does the Minister believe his office is capable of taking on this major legislation when it is enacted?
Deputy Perry has expressed my question, and it is an important one on which we need some guidance before we come to the question of a possible tribunal. As I recall it, there is some minor area in the existing 1963 Act where the Controller has a role but it is quite minor and I do not know that it was ever utilised. Was the Controller ever invoked under the 1963 Act? I am not sure that he was and, therefore, Deputy Perry's question is important. I do not know whether the relocation to Kilkenny is responsible for the fact that staffing numbers are down some 20% but it is difficult to see, in a more contentious environment, how the office of the Controller could take on board the fairly extensive new responsibilities envisaged in the Bill.
Obviously we are getting into new areas but it would be helpful to make a brief comment on the question of the Controller. The Controller would have had a role in relation to licensing schemes, levels of fees, etc. under the 1963 Act. Under this Act his role will be expanded and I accept that the whole question of resources will have to be clearly examined in the context of his workload following the enactment of the Bill.
May I return to the substantive discussion we had on the subsistence of copyright? It is important that we are fair to the memory of the late Jack Lynch but we also have to be fair to Mr. Gordon. I have got this the wrong way around if the Minister is telling me that he is reinstating the position argued in 1963 by the late Jack Lynch as Minister. I do not understand that to be the position. Clearly Mr. Gordon did not understand it to be the position and he was talking after the Bill had been passed by the Seanad. The Minister of State appears to take the opposite view. How can he take that view and still be faithful to the direction taken by his predecessor?
On a related question, what effect will this section have on the implementation of the Supreme Court decision in the case of PPI v. the Comptroller in 1996?
On a related question, concern has been expressed about the implications of section 134 (2) which presumes copyright to subsist in a work until the contrary is proved. That could facilitate unscrupulous persons setting up unauthorised copyright collection agencies, and result in the loss of royalties to the people concerned. That section is seriously flawed.
We have not reached section 37. By the time we reach it these issues will become much clearer. I tabled an amendment, which will change the situation. It proposes a radical but appropriate change. It is proposed to change the position on sound recordings and secondary rights. From correspondence I received from Deputies, I know this issue needs to be addressed and it will be debated.
Will the Minister of State clarify the position on the question raised by Deputy Rabbitte on the 1963 Bill, as they seem to have a different understanding of the issue?
I will revert to the position Jack Lynch outlined on the question of secondary rights, although it will be updated and clarified. It is a different section.
I move amendment No. 18:
In page 34, line 42, to delete "and includes".
We consider the words "and includes" to be superfluous and the amendment proposes to delete them. What would be the effect of their inclusion in the section?
There might be some misunderstanding about this. The words "and includes" are used in this way to ensure that the list of possible authors will be non-exclusive. This will allow the courts, if necessary, to use their judgment to recognise a different class of author who does not fit precisely into the current recognised categories should developments in technology result in the emergence of new types of authors not covered by those categories. As such, this term is part of the technology grouping, which is an important guiding principle of the Bill. Having reflected on the matter, I hope Deputy Stanton will withdraw his amendment. It relates to the argument about changes in technology. The use of the term "and includes" is fairly common in legislation. Will the Deputy consider withdrawing his amendment?
While it does not seem to fit in, I note what the Minister of State said and I will withdraw it.
Amendments Nos. 18a, 19 and 19a are related and may be discussed together.
I move amendment No. 18a:
In page 35, subsection (1), lines 31 to 34, to delete paragraph (a).
I am interested to hear what the Minister of State has to say on this. It is a pity there is not a ministerial amendment to this section. This issue was raised not only during the various deputations by some interests and in material presented to the Minister but on Second Stage. On reflection, I thought the Minister of State would have acceded to the arguments made, particularly those made by the National Union of Journalists and independent journalists and authors.
Through section 23 (1) and (2), the Bill will confer inordinate powers on the proprietors of newspapers and magazines. The proprietors of newspapers and magazines are already in a very powerful positionvis-à-vis journalists and writers. A few groups monopolise not only the national newspaper scene but the provincial newspaper scene. It is unacceptable that the Bill, effectively, comes down in favour of giving the power to the proprietors and puts the journalist, writer or author in a position of weakness where, if they want any rights in regard to further publication of their work in journals or newspapers, they will have to beg the proprietor by whom they are employed for permission to do that. From the point of view of equity and fairness, given that most power resides in the proprietors, the position should be the other way around.
It is possible to cover this type of situation in a contract between a proprietor and an employee, whereby the employee, the writer or author, if organised in a trade union, would have the possibility of negotiating from a level playing pitch. If the Bill, as it stands is passed, it would put inordinate power into the hands of the proprietor. The Minister of State must accept that a journalist or an author has a right to have an interest in how his or her work is used down the line. The Bill precludes that. It would allow the proprietors to use what was created by a journalist, writer or author in a way he or she might find objectionable. In the same way as a person who creates an artistic work is deemed to have a copyright interest in it and to be entitled to royalties in respect of it, it is fair that people who write for newspapers on any range of issues should have a say in how their work is used down the line. One can envisage a situation where when, according to this Bill, a piece of work becomes the property of a newspaper or magazine proprietor, the author of that work would have no such rights. The author's work could be syndicated and large amounts of money made from it by the proprietor, which seems to be the only aspect provided for in the Bill. The interests of newspaper proprietors often can be contrary to the views of an author or journalist. The author or journalist could be in a position where his or her articles are used in a way which he or she finds repugnant, but there will be nothing he or she can do about it if this becomes law.
A parallel could be drawn between it and an example from the singing world. A current advertisement, which I find irritating, uses the singer Janis Joplin to sell an expensive brand of car. It features the well known song for which she was famous all over the world before her untimely demise. The song was an objection to a society which encouraged endless consumerism etc. but her work is being used for the contrary position. The equivalent could arise regarding the written word. Authors might find proprietors in the future using what they created for purposes which are completely alien to what they intended in the first place. If we are discussing fairness, rights, balance and equity, I do not understand how the Minister can propose to hand the full deck to proprietors.
I understood the traditional position was that first ownership of copyright, where a journalist is an employee of a newspaper, rested with the newspaper unless the journalist was a freelancer. I thought that was the position, but the NUJ contacted me and others this morning and vehemently disputed that this was the case. This is the first point which must be clarified with regard to amendment No. 18a.
Section 23 is a completely unjustified shifting of the position that has obtained up to now in terms of journalists. The existing position has been changed dramatically in section 23(2) to the detriment of the working journalist. The position up to now has been that, for example, if I am theFinancial Times’ representative in Dublin, after I do my work for the Financial Times, I may string for a newspaper in the Bahamas and receive a few dollars in return as long as I perform my primary duty to my employer, who I thought had first ownership of copyright. I have the right to sell that to whoever is interested in it. If it was unique or a particularly creative, thoughtful or worthwhile piece, it could be published in a foreign newspaper and I would be entitled to remuneration for my labour. Individual newspapers have always gone along with that position.
The Minister of State is seeking to dramatically change that in subsection (2) to the detriment of journalists. It states that where a work, other than a computer programme - this is an interesting point, but it is a question for another day - is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose other than for the purposes of making available that work to newspapers or periodicals without infringing the copyright. I am not sure what the Minister of State is suggesting the author might want to use the work for if he or she cannot sell it. The only reason he or she would want to make use of it would be to send it toThe New York Times or The Wall Street Journal if they thought it was worthy of publication after it appeared in, for example, the Irish Independent.
I am surprised that the Minister of State would want to reduce the working conditions of journalists. My amendment might appear ham-fisted and inelegantly drafted but the interesting point, as the Minister of State will recognise, is that it comes from the White Paper he produced. It may be indelicate to say it but before he was got at, the Minister of State was ad idem with me. In the White Paper, from which I took this amendment, it was intended to enshrine this in the Bill before whomsoever got in the back door. This is a pity.
I am at variance with my colleague, Deputy Higgins, because I do not think he is right about section 23(1)(a), although the NUJ told me this morning that he is right. This is the first point which needs to be clarified. Nevertheless, the thrust of Deputy Higgins's argument is correct. Why should the traditional position of working journalists be changed? If there have been practices in journalism since the first newspaper was published and journalists were free, provided they were good enough or original or attentive enough - one notices the tremendous attention with which they have followed the debate to date - to have other material published, why should their position be negatively or adversely affected by a new copyright Bill? I do not understand the arguments. The Department clearly did not understand them until recently. Perhaps it is a case of the early bird catching the first worm in terms of whoever came through the door first. It is odd that in the White Paper and the first draft of the Bill the existing situation was reinforced, but it has since been changed. This is a pity and I wish to hear the Minister of State's views on it.
I support Deputy Rabbitte's comments and I ask the Minister of State to clarify the point. The Bill proposes to transfer ownership of copyright in such cases in its entirety to the newspapers while also permitting journalists a limited right to use the works for other non-newspaper purposes. What does this mean? How can it be policed?
In relation to the Internet, there are notify and take down provisions where, if infringing material is being carried on a service such as the Internet and the rights' owners inform the service providers that the infringing material is being carried on their service, the service providers will be obliged to remove that material as soon as is practicable. How will this be policed? Who will ensure that is done? It is a major issue with regard to the Internet given the amount ofinformation on it. Who will police this area? In terms of it being done as soon as is practicable, what timeframe does the Minister of State envisage?
As a former journalist I am also curious about this matter. I hold the same reservations about it as the NUJ. I wish to declare an interest because my membership of the NUJ is in suspension. I am extremely worried about this because journalists are pursued as individuals for libel purposes and can have criminal records attached to their passports so that their travel rights to the United States and elsewhere are restricted. However, the Minister seems to be moving copyright away from individual journalists.
There is an argument here, if the Minister progresses with this, for some form of compensation by newspaper owners for journalists who surrender the copyright in any work they produce. When I worked as a freelance journalist many years ago for theIrish Press, the Irish Independent and The Irish Times - and I think the situation was the same for employees - there was an understanding by the management at that time that if the newspaper, as a corporate entity, chose to reproduce a journalist’s work in a foreign publication, such as The New York Times, the Los Angeles Times or the Shanghai Times, the journalist would receive some remuneration. That seems to be at odds with this provision, which means that journalists will not be remunerated if their work is reproduced internationally, just because they are employees.
While we are in a high-tech age, with the Internet and so on, the print media remain the most important influencers, in my view. All the others, such as television and the Internet, are transient, while the print media are often used by television, radio and the Internet as opinion leaders. Newspaper journalists are, in many ways, quite powerful in influencing opinion in our democracy. When we make changes such as this we must make haste slowly and be very careful about what we do.
A number of issues were alluded to. I would like the Minister to answer some specific questions, the first of which relates to the paternity right. If the Minister's proposal goes ahead, will journalists lose paternity rights over their work? Will the integrity right be lost? In other words, will it be possible for a journalist's work be sold to another newspaper or used out of context? The NUJ is worried about this.
Another very important issue is the public's right to know which journalist is writing what. Will that right be lost if the paternity right is lost? I am also concerned about the ability of journalists to maintain their sources. Is there a problem in that regard?
Why has the Minister introduced this? What specific lobbying was done? Did international trends lead the Minister down this road? My information is that the opposite is the case and that the UN and the EU have concerns about what is proposed in this legislation. Has the Minister come across that?
Can we draw a distinction between the economic rights and the moral rights of work? The moral rights seem to be the main concern. What part does a contract of employment play in this? I assume a journalist employed by a newspaper would sign a contract which would protect the employer from the journalist selling on his or her work and that contract law would safeguard newspapers in that regard.
Where are we going here? Are there other agendas? I did not table amendments on this but I am not sure about this area. This is a very serious issue. I would be very interested in hearing a comprehensive reply from the Minister and, perhaps, looking at this again on Report Stage and consulting further on it.
I thank Deputies for their contributions. I anticipated that this section would warrant close scrutiny, which I welcome. I assure members there is no question of me being "got at", for starters. I think Deputy Rabbitte used that term. I have applied the same principle as regards representations in this case as I would in other cases. I have endeavoured to listen to both sides of the debate - the newspaper proprietors and journalists' representatives - and we had a debate in the Seanad.
Deputy Rabbitte is correct that in our initial publication we gave a more favourable position to journalists. However, under the 1963 Act journalists essentially own copyright in all cases, except for publications in the newspaper by which he or she is employed. That was and is the position. I am trying to bring some order to this area of relationships between employers and employees, particularly in the media, so that one side will not be in a special position. However, having said that, people have asked about the situation in other countries. In the UK, journalists are treated like all other employees and have simply no rights. I did not take that route, as members can appreciate.
It is important to make the point that freelance journalists are not affected by this because they have their own employment contract. I am trying to respect the traditional position of print media journalists. Having listened to all sides of the debate, I have come up with a fresh proposal, which I will go through.
Deputy Rabbitte would substantially restore the situation under the Copyright Act, 1963. In that case, employee journalists in the print media would retain copyright in their work, except for the purpose of its inclusion in a newspaper. I would like to make two points about that. The old exception, which obviously favoured print journalists over all other classes of employees, was anomalous and, it could be argued, unjustifiable and could not be continued. However, at the same time, some recognition for the long established right of employee journalists should, in all justice, be maintained. That is my thinking on this.
The present text, which would assign copyright to the employer - who is obviously the owner of the newspaper or periodical - would be retained while giving the employee journalist a limited right of use of the material outside the newspaper sphere. That is a reasonable and honourable compromise between competing interests. I have introduced it on the basis of a considerable amount of consideration of the competing interests. We tried to come up with a fair and equitable solution, which is what I managed to do because nobody is cheering about this section, neither the newspaper proprietors nor the journalists. I am trying to bring some order to this which is why I have tabled this amendment. Freelance journalists are not included.
Deputy Rabbitte and others asked me what journalists could do with their work. For example, an employed journalist - not, I repeat, a freelance journalist - could perhaps produce or publish a book based on some articles that he or she had written on the beef tribunal or whatever. That is one possible example of what a journalist could do with his or her work. I am keeping the integrity of copyright in place as best I can; trying to apply it to journalists as to other employees, but obviously trying to respect the traditional position that journalists have had. If somebody can argue that is not honourable and correct, fair enough, please try to do so, but I will defend my position in endeavouring to do that.
I cannot accept Deputy Higgins's amendment because it would effectively convey on all employees of whatever sort the full copyright interests in any copyright work created by them in the course of their employment, except in limited cases governed by Government and Oireachtas copyright and copyright of international organisations. Such a change would place employers in a very difficult position legally in relation to the use of copyright-protected materials generated by their employees. I could not accept such a radical departure from the long-established and generally accepted principle of copyright ownership.
The Deputy asked me to delete section 23(2) which, as I have just represented to him, is my effort to come up with a reasonable compromise. If the Deputy proceeded with the amendment, it would eliminate the compromise devised by me to give recognition to the long-established interests of employee-journalists in the print media following the transfer of their previous copyright interest in their work to their newspaper employers by giving them a limited right to use the material outside the newspaper area. For that reason I am not accepting these amendments.
I hope members will accept the background to my decision, which was taken after having given careful thought to both sides of the argument. I genuinely accept there was a need to respect the traditional position of print media journalists and I have done so. I accept that people may not be happy that I have done enough, but it is a genuine effort to respect that position. Journalists in the United Kingdom do not have such a position.
A reference was made to the fact that the ownership interests of employee-journalists was a special exception, stemming from the UK Copyright Act, 1956, which was the basis of our Copyright Act, 1963. Other jurisdictions which had legislation based on the UK Copyright Act of 1956 have reformed their legislation. Notably, Hong Kong and Canada have abolished this exception as being anomalous, but have introduced their own forms of compromise designed to recognise the traditional interests of employee-journalists deriving from the old exception. In essence, we are doing the same thing.
Deputy Stanton asked me about moral rights, but there is a dilemma there because there are all sorts of editorial decisions. The Deputy is right in saying that there is a practical dilemma because print journalists do not enjoy moral rights. It is considered to be impractical in view of the nature of the editorial process which makes the application of either paternity or integrity rights unrealistic.
I am conscious that this is a matter of interest on all sides of the House. That is my compromise and I am sticking with it. I have been asked by the newspaper industry to go further, yet I have refused to do so. I have been asked by journalists not to go this far. The measure respects the best way forward which is to endeavour to be reasonable to journalists. I rest my case.
Before we proceed, I have a problem in that I have to leave for Gorey within the next five minutes. Could I have a nomination for a Chairman, please? This is a major issue which I feel requires much discussion. We will continue in session until 6 o'clock, I understand.
Deputy C. Lenihan took the Chair.
Deputy Rabbitte is offering, so he might lend us some of his wisdom on this subject.
Congratulations on your elevation, Chairman. Has Deputy O'Flynn joined us? We could have done with a bit more weight in the Chair. Maybe he will be available for service later.
I want to withdraw the term "got at", if that has pejorative connotations. The Minister is perfectly entitled to be lobbied by whomsoever, as I said earlier, and I did not mean it in that way. The Minister has rested his case but it is not much of a case. I never heard such a flim-flam job in all my life. On the one hand the Minister says he has respected the traditional position of print journalists, yet on the other hand he says that the old position was anomalous. He made a heroic effort to square the circle, but the issue here is an important one about which we have to be precise. The only thing I am clear about from the Minister's response is that he agrees he had the opposite position in the first edition of the Bill and that it protected journalists' traditional rights. Other than that, what is here is an erosion of the position of working journalists.
I pose the question prompted by Deputy Higgins's first amendment which is, what is the legal copyright position today? I have had no discussions with the NUJ, except a telephone call this morning where it advocated to me Deputy Higgins's understanding as the correct one, and perhaps it is. However, my understanding is that, other than in the case of a freelance journalist, a journalist who is an employee of a newspaper in the print media does not have first ownership of copyright - the newspaper does. It is important that we clarify that one way or the other because the issues are very important. I cannot see why the position that has operated without any complaint up to now ought to be changed.
I am certain, however, that section 23(2) is a dramatic change. The Minister said, for example, that the journalist concerned could use his reports to publish a book, but that would be cold comfort to the great majority of journalists. Only a small minority of exceptional journalists - with no disrespect to them, whose articles would be worthy of being published in a book - would publish books. Therefore, for the ordinary working journalist there is not too much comfort in the Minister saying they can go ahead and publish their articles in a book. That is not what the working journalist is concerned with. A particularly outstanding journalist may write an original thought piece on Northern Ireland and after it is published in his newspaper he may decide to string it toThe New York Times. As we all know, there are many people in New York who could do with an original thought piece on a subject such as Northern Ireland. He may get a few dollars for that, which has been the traditional position. Under the change the Minister is introducing - he has not explained to us what the change is - that may no longer be the case because subsection (2) clearly states that the author may use the work for any purpose other than for the purposes of making available that work to newspapers and so on. It would help the debate if we were more frank on this and acknowledged that the proprietors want to use the piece several times through multi-media outlets owned by them. I do not object to that, but I do not want to see the author or creator of the piece losing first ownership of copyright.
In his reply the Minister of State addressed all sides of the debate, but he did not clarify the position from my perspective. I do not mind him using clichés, for example, by stating that he will defend his honourable position - I am sure his position is honourable - but I am more concerned with the precision of the legislation. He cannot say he is respecting the traditional position of print journalists when he is not doing so. He concedes the first draft of the Bill did not challenge the 1963 position.
I am not aware of any difficulties in this area. I met representatives of the national newspaper industry and they made strong representations. I did not hear them say it caused any difficulties between 1963 and 1999, but perhaps they envisage it will cause difficulties in the future, in an era of converging technologies, etc. However, the Minister of State has not given me a solid reason he wants to worsen the conditions of working journalists. I am surprised he would wish to do this because he has involved himself in a number of trade union issues.
We must be frank and put the issues on the table. There is no point in the Minister of State trying to say that this is the traditional position which we should all accept. However, while I do not wish to be contentious about this and do not wish to divide the committee unnecessarily, we cannot all be satisfied that is the position.
I call on the Minister of State to clarify the position before calling other speakers.
Who had the first option in terms of 1963 and today?
We will return to that because I said earlier that the journalist owns copyright in all cases except for the publication in the newspaper in which he or she is employed. The 1963 position is that newspapers own copyright in such works only to the extent that employees are involved and the other share of the copyright belongs to the employee journalists to exercise as they think fit.
That means that the NUJ is wrong in respect of this provision, which does no more than reinstate the traditional position.
That is set out in section 10 of the Copyright Act, 1963.
I do not disagree with the Minister of State but I am concerned with getting him to put on the record that where a journalists who is an employee of a newspaper and writes for that newspaper, the newspaper has first ownership of copyright. Is that the position?
Is the Deputy asking about the position in 1963?
As it pertains today.
Only in so far as it is published. If it was not published by the newspaper the journalist would retain copyright. For example, if he was sacked for trying to write a bad article about the Minister of State, which was never published by the newspaper, he could publish it in another newspaper without infringing copyright.
That is the 1963 position. We are dealing with exceptions to works created during the course of employment. If one considers the various areas in which people in the media work, such as software, one will find clear relationships between employers and employees. While it may appear to be an anti-journalist move, I am trying to introduce order to this area. The balance struck, in terms of giving the journalist limited right to use the material outside the newspaper sphere is the most equitable way forward.
I have explained the 1963 position and outlined the current position at length. We worked carefully on the language here. For example, section 23(2) states:
Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose, other than for the purposes of making available that work to newspapers or periodicals, without infringing the copyright in the work.
It is an equitable way forward.
Like Deputy Rabbitte I understood that, at present, a journalist who is an employee is the first owner of copyright. The Minister of State has clarified that is not the case, so it appears that the NUJ is mistaken in its submission to us.
When it is published in the newspaper.
The NUJ is incorrect with regard to the position set out in section 23(1)(a). It is not wrong on the second matter.
In his brief response the Minister of State placed a heavy emphasis on compromise. A compromise suggests balance, yet under his so called compromise the newspaper proprietors walk away with the lion's share. The Minister of State wishes to be generous with journalists in allowing them to do anything with their work, except when it comes to reusing it in newspapers or periodicals. That is like telling a fish he can swim anywhere except in water because newspapers and periodicals make up the vast bulk of what is published and printed and are, therefore, meat and drink for journalists. Once their right to republish within that section of the media is excluded they are effectively excluded from further activity. They may have the right in their twilight years to compile some of the articles they have written over the years, but that is not the main consideration.
Section 23(2) provides that "the author may use the work for any purpose, other than for the purposes of making available that work to newspapers or periodicals". Journalists are unlikely to use their work to wallpaper their living rooms, but they may wish to use it as a contribution to a part or the whole of another work. Powerful newspaper conglomerates do not just have substantial interests in Ireland, but also substantial international connections and control, and the Minister of State is handing to newspaper proprietors the possibility of exploiting the work of journalists with great monetary benefit for themselves but without any automatic right for the journalist to a share.
The Minister of State can argue that it is subject to agreement but when journalists enter employment, they are in a weak positionvis-à-vis the employers. They are not in a strong position to dictate terms to an employer and, therefore, it is not a good support for journalists that the position can change through a legal agreement between them and their employers because they are in the weaker position, at least until they are well established. Trumpeting it as a compromise does not convince me.
The Minister of State did not clarify Deputy Rabbitte's question. What is the legal position in regard to the precise right of the creator of the workvis-à-vis the employer?
The legal position is that the journalist owns copyright in all cases except for the publication in the newspaper for which he or she is employed and that is understood. The position of freelance journalists is not affected by this. They make their own arrangements under contract law. I already referred to the situation in the UK where this matter was dealt with some time ago. The proprietor of the newspaper has all the rights there. I do not suggest that that directs us in any particular direction but the Copyright Act, 1963, derived from the 1956 Act in the UK. When people referred to radical changes at the time, I presume they were following a similar trend of trying to rationalise positions between employers and employees in the true sense of such relationships, and not taking account of the freelance journalist. I am trying to rationalise and bring order to employee-employer relations yet allow for the traditional position of journalists as best I can.
During the Seanad debate, Fine Gael wished to strengthen the position of the newspapers but that has now diminished. I was endeavouring to achieve a middle ground and I believe I have done that. Similar attempts have been made in other jurisdictions. We are trying to bring a degree of order to employer-employee relations.
This is an important section and some matters are entirely unclear. I do not understand how the Minster of State presents this as a matter of bringing order. What does it mean? Mrs. Thatcher said "Let us bring harmony where there is disorder". I did not know that there was any disorder. The practice here has been the same since shortly after the time of Guttenberg. What is the disorder that that requires us to rationalise and bring order?
Freelance journalists are employees similar to any others. I do not wish to impose order. It is nothing new in that sense but journalists are involved in a particular medium. There are competing media and there are logical reasons that the same position should apply throughout the media industry. I have diminished some of industry's traditional privileges.
Why did the Minister of State choose to favour the writers in bringing order rather than to confer on the employees in other media the rights that journalists had prior to this Bill?
It is normal for employers to enjoy that position with regard to copyright. In this case the position was different. I reiterate that I was transparent regarding representations made to me. The vested interests of the newspaper industry, to which the Deputy referred, will not be sated with this compromise. That is the reality.
Subsection (2) states that "the author may use the work for any purpose". The Minister of State explained that this referred to any purpose outside the print newspaper scene. How is it suggested to bring order or rationality to this scenario if the print journalist may use his or her piece any way he or she chooses - although the mind boggles because even in the multimedia era that is limited - other than in a print outlet? The section says that the journalist may use his or her piece anywhere except in a newspaper or periodical.
That has been the tradition since journalism was a boy, so to speak, and I do not understand what references to rationality and order have to do with anything. I do not know enough about it to say that it is exceptional, but, presumably, one would have to be a reasonably competent journalist for a reputable newspaper abroad to consider one's work to be worthy of re-publication. That has been the traditional position in Ireland and it has been good for the country because it is important that the work of our more capable journalists can be reproduced abroad. Surely that is good for Ireland. I know of at least one journalist outside the print media who writes forLe Monde.
I cannot see what is provoked by the Bill especially given the Minister of State's confirmation that the position was the same as it had been in the original draft of the Bill. If thestatus quo was good enough a few months ago, why is it not so now? The Minister of State should reconsider this. I do not have an objection in an era of multimedia ownership if proprietors want to be able to publish a particularly creative piece several times but the traditional rights of the journalist ought not be abrogated, yet they are in this section. I do not understand why it is being done. This is very important - it is unusual to bring in legislation which worsens employment conditions. This confers privileges which were not there previously on others, to which I have no objection, but this should not be done at the cost of the people at the coalface.
Minister, can these difficulties be resolved?
With respect to the views of members, we have discussed this in the Seanad and in the Dail and there has been some comment, but not a great deal, in the public domain; perhaps this is one of the problems. I produced a working draft in July 1998. Positions have been amended and we have seen some examples of that. The Deputy referred to "for any purpose", for which I gave the example of a book. I have gone through this with a fine toothcomb through listening to the various representations and submissions which have been made to me. If it would help the committee, I would have no problem referring it to Report Stage. However, I am convinced - unless someone can convince me otherwise - that having exhausted all options, this is the best available. If it helps the committee to move on, we can do that but I am not promising anything.
I move amendment No. 19:
In page 35, lines 41 to 45, to delete subsection (2) and substitute the following:
"(2) Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical and is made for the purpose of being lawfully made available to the public in a newspaper or periodical, the proprietor of the newspaper or periodical shall be entitled to the copyright only in so far as it relates to the lawful making available to the public of the newspaper or periodical or to its reproduction for the purpose of its lawful making available to the public in the newspaper or periodical and in all other respects the author shall be entitled to the copyright subject to any agreement to the contrary.".
I must press this amendment. Having listened to the Minister and the debate, it is quite clear that traditional rights of journalists are being wantonly abrogated. Deputy Higgins was quite right to draw attention to the Minister's language about a compromise. As he said, compromise implies a sense of balance. There is no sense of balance here - the right is taken away. What is he suggesting? One cannot publish a written piece on the radio or television - it does not work like that. One can put it on the Internet if one wants. To protect the right of a journalist to publish his own work as a book is not something for which we ought to be grateful to the Government. If a journalist wishes to write a book of his or her work, surely credit redounds to the proprietor for whom he or she works. I cannot see how that is being proffered as some kind of concession. This is very important and I must press the amendment.
The Minister mentioned referring this to Report Stage, which would be a good idea as there is disunity and confusion about this. Some of the submissions I received have confused me. I received a submission from the NNI which states that, in theory, in-house journalists will lose residual rights. I do not know what this could mean or whether the Minister agrees with it. As the Minister said, journalists are annoyed about this section. I do not understand what they are annoyed about, given that the Minister said there is basically no change in the law.
There is a considerable change - that is very clear. Their legal position on copyright was much stronger in the 1963 Act. I am allowing them use their work in certain situations but the copyright now rests with the proprietor. There is clearly a change. This is my effort to try to meet with competing interests. In other copyright situations in the media, the employer-employee position is much more favourable to the employer. The position is clear and I do not have much more to say on it. I can give the committee an assurance that we will hold it over until Report Stage if it gives people time to think out their positions.
It is a pleasure to deal with a diplomatic and polite Minister but, with all due respect, I do not have to think out my position. There is no point in referring it to Report Stage for me to think out my position. I have thought out my position which is, ironically, framed in the Minister's amendment which he is now disowning in the first publication. The Minister will have to give an undertaking that he will rethink his position for Report Stage. It is not a matter for the committee.
It was a working draft which went back as far as July 1998. Many other sections and elements of this Bill have been dramatically altered. This section has been amended. My position has been thought through. I predict that it is most unlikely that I can come up with any other form of language which will be the best compromise for competing interests. That is my position.
Rather than restricting section 2 to newspapers, perhaps the provisions could be subject to an agreement being in place between the employer and the employee in relation to the reproduction of his work in other non-competing publications or periodicals. I can see the point of the proprietors, and I think the Minister can see this in equity. Employers are concerned that a work produced in the course of an employee's work by and for the employer, for example the Irish Independent or The Irish Times could, in our instant media culture, be reproduced in another publication, perhaps in another country, but would be available to the same readership. For example, an article could be instantaneously reproduced in the London Independent or The Times - which are available here and are, in effect, competitors although they are not from the same national territories - to the disadvantage of an Irish newspaper.
Could a provision be made whereby the employee would enjoy the first copyright subject to an agreement with employers about reproduction rights of that piece of journalism? For example, Le Monde was cited as a good example by Deputy Rabbitte. If Le Monde expressed an interest in an article published in the Irish Independent, the newspaper owner would not have automatic copyright over that work because its mere reproduction in the following day’s issue of Le Monde does not represent an infringement of their copyright as they have already enjoyed the first right of copyright.
I offered to help the committee. We have had a thorough scrutiny of this and other sections. A good atmosphere has existed. I repeat my offer to refer this to Report Stage. The Deputy's suggestion is one of many which have been examined. I am not trying to raise hopes but I repeat my offer to refer it to Report Stage.
The Minister of State is not saying anything. It will be referred to Report Stage anyway. He is giving a clear indication that he will not change his position. This is a very unusual approach to industrial relations. This matter, which concerns the relationship between employers and employees, is normally worked out in face-to-face negotiations between different groups, or at present, between the so-called social partners. However, the Minister of State is intervening by way of legislation which severely weighs against employees and their traditional rights. He must understand it is a significant departure that the Government would take such a position. If it happened in other areas of employment with more people involved, there would be uproar, especially if the Government decided to enact legislation blatantly restricting existing rights or privileges of a section of the workforce and which was outside the negotiations and normal bargaining between employers and workers.
- Higgins, Joe.
- Rabbitte, Pat.
- Stanton, David.
- Ardagh, Seán.
- Brady, Martin.
- Brennan, Mattie.
- Callely, Ivor.
- Kitt, Tom.
- Lenihan, Conor.
- O’Keeffe, Batt.
Amendment No. 19a has already been discussed.
I move amendment No. 19a:
In page 35, lines 41 to 45, to delete subsection (2).
On the question of a series, where programmes are made over a period of time, how is copyright to be dealt with?
What line are we talking about?
It is not mentioned here, but if a series goes on for a number of years, how does one deal with that? Is it to be broken up or has the Minister of State looked at it?
It has not occurred to us to include references to it, but perhaps I can come back to the Deputy later on it. The matter is dealt with later in the Bill, in section 31, which deals with duration of copyright in works and volumes parts. This would probably deal with the Deputy's concern with episodes. Where work is lawfully made available to the public in volumes, parts, instalments, issues or episodes and the copyright exists from the date the work is so made available, the copyright shall subsist in respect of each separate item. That explains that.
Amendments Nos. 20 and 22 are related and may be discussed together.
I move amendment No. 20:
In page 38, subsection (1)(a), line 27, to delete "copy" and substitute "reproduce".
I understand that the international norm is to use the word "reproduce" and that there are problems with the word "copy". For instance, it has been said to me that reproduction of a musical scale might be a production of it while a copy of it might be an exact copy. Has the Minister of State looked at using the word "reproduce" in the Bill as that seems to be the international norm?
Our view is that the term "copy" is inclusive of the term "reproduce" in the context of the Bill. It is a larger and more flexible term and the association or substitution of the term "reproduce" may undermine the clarity of the word "copy". This view is supported by the advice of the Attorney General, so I am fairly stuck on that one.
Amendments Nos. 21, 29 and 132 are related and may be taken together by agreement.
I move amendment No. 21:
In page 38, after line 40, to insert the following subsection:
"(4) Where a sound recording is:
(a) played in public,
(b) included in a broadcast or cable programme service, or
(c) made available to the public by wire or wireless means in such a way that members of the public may access the sound recording from a place and at a time individually chosen by them, including the making available of copies of sound recordings through the Internet,
the right conferred on the owner of the copyright in that sound recording by subsection (1)(b) shall be deemed to be satisfied by the payment of equitable remuneration.".
In the interests of clarity, I propose to move amendments Nos. 21 and 132 which address points in question in the copyright and performance areas respectively. Since amendments Nos. 29 and 30 aim at substantially the same result, I ask the Deputies proposing those amendments not to press them.
I have considered the more detailed texts set out in amendments Nos. 29 and 30 but I am advised by the Attorney General that the approach in amendments Nos. 21 and 132 is sufficient to achieve the desired result and I propose to stick by them. Many representations have been received from broadcasting organisations which are concerned about the level of protection being given to performers and sound recordings, particularly in relation to the making available of rights which include a broadcasting right in the context of the Copyright and Related Rights Bill. They point out that performers in sound recordings are being given much higher protection than is required by either EU or international law and are concerned that this might put them at a disadvantage when negotiating for the use of performances or sound recordings in their broadcasts. Having considered the matter, I am of the view that while trying to improve performers' rights and protection and protection for sound recordings, such high protection may be premature given present international standards. We referred to this earlier.
We got this amendment shortly before coming in and it is complex and difficult to assimilate in a short time. I am not too sure about it and we may have to come back to it on Report Stage. On equitable remuneration, one is talking about splitting up the two types of copyright again. Hoteliers may be concerned that licensing agencies could stop them from playing music. Has this issue been addressed? I have not had time to study it to see if it has been addressed.
They will not be able to stop them playing it. I have no problem, Chairman, if you wish to give Deputies the chance to come back to this issue on Report Stage but my position is on record. There is an issue which needs to be addressed as we were giving additional exclusive rights which were not necessary. That seems to be the committee's wish. Chairman, you are in a position to know what we have done to this legislation and how we have amended it, and I have no problem coming back to it on Report Stage for absolute clarity.
We can table amendments on Report Stage.
I move amendment No. 23:
In page 39, between lines 18 and 19, to insert the following subsection:
"(3) There shall be a presumption that material which is published on the Internet may be copied accurately and with an acknowledgement of its source, without formal permission, unless a statement to the contrary is published with the material on the Internet site.".
This amendment deals with the nature of the Internet, particularly its transient nature. Librarians, in particular, are concerned about this issue as they often use the Internet for research and other purposes. They are concerned that it can take some time to identify the copyright owner, if such a person exists, and to obtain formal permission. As drafted, the legislation could mean that librarians would be unable to copy any material from the Internet. The amendment proposes that if someone wants to safeguard copyright on the Internet they should include a notice to that effect on the Internet so that people would infringe the law if they ignored that notice. If such a statement is not included with the material it would be taken that the material is copyright free and could be copied. This issue involves modern technology. The Internet is vast and is developing so rapidly it is important that we study this issue and tease out the difficulties which people are experiencing when accessing the Internet.
Some people might interpret the word "copy" as printing material. However, if one copies material to a hard disk can one retain it on one's computer? For how long can one do so? Is one copying material by merely bringing it up on a computer screen? The Minister of State might address these issues which are of particular interest to librarians and others.
This proposal which aims to address an important problem concerning authorisation for copying work carried on the Internet has been raised in the Seanad and elsewhere. The problem is that this amendment would effectively require rights holders to observe a formal requirement prior to the exercise of their copyright rights. In this case that would involve the placing of a statement or notice on the relevant Internet site. Imposing formalities of this sort is forbidden by Article 5.2 of the Berne Convention on the protection of literary and artistic works which Ireland is obliged to ratify under EU and international trade law. The question is receiving consideration in the context of negotiations on the EU directive on copyright in the information society, although no solution has been found to the legal difficulty to which I referred. While I appreciate the Deputy's concerns I cannot accept an amendment which appears to be contrary to a point of international copyright law which Ireland is committed to respect. We must respect our international obligations and the information society directive. However, this is an important area which may be addressed in the future.
Is the Minister of State saying that people will not be able to copy material from the Internet unless permission is given on the Internet or they obtain formal permission to do so?
People can copy material from the Internet at present.
Can they copy and print any material?
And do with it what they like?
That is the case at the moment so we have to address this issue.
Is the Minister of State saying that it is his understanding that people can copy material from the Internet and do what they want with it?
I agree with the points made by Deputy Stanton and we require clarity on this issue. The proposed wording has the merit of clarity - "There shall be a presumption that material which is published on the Internet may be copied accurately and with an acknowledgement of its source, without formal permission, unless a statement to the contrary is published with the material on the Internet site". That seems the essence of the Internet but, in terms of the earlier discussion on seeking to define the Internet, we have no idea how this is likely to proceed in the future and, therefore, for the purposes of clarity we should enshrine in the legislation that there is a presumption as encompassed by the amendment.
It is possible to copy material at the moment unless it is technologically protected. We will have to await the outcome of events at EU level. I appreciate the efforts of Deputies to come up with a solution but there will be a number of areas, particularly involving technological changes, where I will be suggesting that we await international developments. We are involved in the discussions at EU level and there is a lack of legal certainty. In such circumstances it would be imprudent to unilaterally try to come up with solutions at national level.
The Minister of State is saying that, at present, people can copy material from the Internet and do what they want with that material. I take it that this precludes copying if there is a statement with the material on the Internet that such copying infringes copyright.
All these areas will have to be dealt with sooner rather than later. The Deputy is raising a fundamental point but there are many technological developments which will deal with these situations.
Schools have computers with access to the Internet and schoolchildren and homes all over Ireland have access to the Internet. The Minister of State must clarify the meaning of this legislation. Can people copy material from the Internet? We need clarity on this issue. What is said at this committee can be used in court so it is important that the Minister of State is clear on this point.
That is a fair point and we will ask the Minister of State for clarification.
The Deputy has asked about the position which applies here and elsewhere. One can copy material unless there is a technological protection or a statement with the material to the effect that one cannot do so.
That does not answer the question - or perhaps I have missed the main point. Is the Minister of State accepting the amendment?
No, I am suggesting that the amendment seeks to legally oblige or to imply this provision nationally. This issue has not been resolved in that manner internationally. However, if it is not specifically stated that particular material cannot be copied, people can copy it legally.
Is there any need for us to have a domestic Government at all? We are dealing with copyright legislation as it applies to Ireland and all we are seeking to do is to enshrine in the legislation the presumption that material may be drawn down from the Internet. That is the current international position. Except where it is expressly provided that material cannot be drawn down, it can be drawn down. Why should that not be enshrined in legislation, irrespective of what someone in Brussels thinks may happen next year or in ten years' time?
The Minister's argument until now has quite properly been that our legislation lags behind legislation in Europe and that the Americans will hang us out to dry if we do not come into line. The Minister is now telling us that we must anticipate international developments. We are a sovereign Parliament. Deputy Stanton has raised a question in regard to current practice in this area and the purpose of this amendment is to seek to enshrine that in legislation. If the sky falls in on Grafton Street at some future date and Brussels wants to say x or y, we will change the provision.
The Deputy was around this course himself in regard to the Berne Convention. Imposing formalities of this nature is forbidden by Article 5.2 of the convention in regard to the protection of literary and artistic work. Under EU and international law, we are obliged to ratify the convention. We are not in a position to introduce this compulsion. The Deputy will be aware that there are many limitations throughout the Bill in regard to what we can and cannot do. I respect the Deputy's point about our trying to be ahead of the posse but, in this instance, there are limitations on what we can do even if we wanted to introduce a particular measure.
If I understand him correctly, the Minister is saying that material can be copied at the moment unless there is a statement to the contrary or unless technological measures prevent that happening. That is, in a way, what I am saying.
We cannot make that compulsory.
I am not saying it should be compulsory, rather that material can be copied unless a statement is published to the contrary. The Minister has stated that that is the position under the law as it stands. I merely want to clarify matters. Some people are concerned that if they copy material from the Internet they may be in breach of the law.
If we were to state that material could be copied unless a statement was published to the contrary, we would be making it a formality. There is still a great deal of legal uncertainty to be resolved here. We are involved at EU level in trying to bring these matters to fruition. I have outlined the current position which I acknowledge is imperfect. However, legally we cannot go beyond the Berne Convention to make this compulsory or to make it a formality.
What section of the Berne Convention is involved here and what does it state?
What does it state? The Minister has continually stated that we cannot introduce an element of compulsion. We are not seeking to introduce an element of compulsion; rather we are seeking to provide for the existing practice in the legislation. I am curious to know how the Berne Convention or, indeed, any other convention——
Article 5 refers to rights guaranteed within and outside of the country of origin. Article 5.2 states that the enjoyment and the exercise of these rights shall not be subject to any formality. Such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. As I see it, the amendment would convert implied rights into formal rights.
As the Minister has acknowledged, this is a major problem. I am loth to leave the matter unresolved. I am aware of the difficulties and ambiguities involved. Perhaps the Minister will consider the matter before Report Stage and find out whether there is a way around it. He understands the problems citizens face in this area in regard to the lack of clarity which exists.
The Minister is indicating that he will be happy to do that.
I thank the Minister for that. While he has it in front of him, will the Minister remind me when the Berne Convention was signed?
The most recent version was 1979.
At which time the Internet was a gleam in the eye of the Pentagon men. It is fantastic to have to listen to this type of argument being trotted out as a reason for our being unable to do something. As far as the common people were concerned, there was no Internet in 1979.
The Minister has indicated that he is prepared to revisit this matter on Report Stage. How stands the amendment?
I am happy to leave the matter until Report Stage.
I appreciate that the Berne Convention should be updated.
I agree to leave the matter until Report Stage but I urge the Minister to seriously examine it before then. If one is determined to uncover obstacles, one will uncover them. The sky will not fall in, nor will Brussels come after us, if we include this type of provision. I am sure the Minister's excellent officials could devise a way of doing that.
Amendment Nos. 24 and 31 to 36, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 24:
In page 39, subsection (1), line 21, after "following," to insert "and the acts described should apply equally to the original and to any copy or copies".
This amendment relates to the original version of a work and any copies thereof. It is often difficult to distinguish between the original work and a copy. The original work can be abused. This amendment seeks to ensure that an original work cannot be sold or abused in any way.
This issue arose in the past. We considered whether it might be necessary to refer to both copies and originals in certain places in the Bill. We have been advised by the Attorney General that a correct legal construction of the word "copy" includes the concept of "original" which is in effect the first copy. Therefore, I cannot accept the amendments. However, I will accept amendments that will strengthen the precise meanings and definitions of words.
Is the word "copy" defined in the Bill?
No, it is not defined.
The Minister is now defining the word "copy" to include the original and a reproduction. It is important to include in the Bill a definition of "copy".
Will the Minister of State consider this issue for Report Stage?
I will withdraw my amendment if the Minister of State will state what is meant by "copy" and "reproduction".
Amendment No. 25 is consequential on amendment No. 26. Amendments Nos. 25 and 26 may be discussed together by agreement.
I move amendment No. 25:
In page 39, subsection (1)(g), line 33, to delete "work;" and substitute "work,".
This is a technical amendment.
I move amendment No. 26:
In page 39, subsection (1), line 34, to delete paragraph (h).
I move amendment No. 27:
In page 40, subsection (4), line 6, after "subsection" to insert "retains control over the copies so made available".
This amendment relates to libraries retaining control over copies they make available.
This subsection refers to the notify and take down provisions in the Bill which are designed to allow a rights holder to place an effective obligation on a person in control of a computer facility, such as a website, to remove infringing material from it or become liable for infringement themselves. Since the act of taking down the infringing material will both satisfy the requirements of the subsection and effectively place it beyond the control of the person with obligations under this provision, I do not believe this amendment is necessary to protect innocent parties. I would be afraid that it would confuse the meaning of the subsection with no real benefit in return. Therefore, while I understand the Deputy's point, I believe the amendment should not be pressed.
I take it we are talking about Internet service providers.
How practical is it to expect ISPs to withdraw material from the Internet? Very often they are not in total control of the material. If material is withdrawn, it can easily be put back on again. How can an ISP prove that he or she withdrew the material if, in fact, it can be replaced in an instant by the person who included it?
As the Deputy is aware, my amendment No. 28 will clarify this matter.
We are now back to considering the Minister of State's amendments for the first time almost. This presents a major difficulty given that the issue is so technical.
Perhaps it would be helpful if I refer to what I am endeavouring to do because it relates to the Deputy's proposal. The issue of liability of service providers in respect of the infringement of rights is dealt with in these sections by means of the notify and take down provisions, that is, amendment No. 28, whereby once service providers are notified that their facilities are being used to carry infringing material, they must remove the material as soon as is practicable or they will also be held liable for that infringement. Following further consideration of this matter, it will be useful in the interests of clarity to prescribe the form that notice should take. As this notice will be used as the basis for removing the alleged infringing material and any resulting court action, it is important the Minister has the option to specify the form of that notice. My amendment relates to section 39.
Amendments Nos. 28 and 131 are related and may be discussed together by agreement.
I move amendment No. 28:
In page 40, between lines 10 and 11, to insert the following subsection:
"(5) Without prejudice to subsection (4), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify -
(a) the name and address of the person claiming to be the owner of the copyright in the work concerned,
(b) the grounds that the person requesting the removal of material has for such removal, and
(c) a list of the material which is to be removed.".
I have already outlined the reasons for this amendment.
I move amendment No. 29:
In page 40, before section 40, to insert the following new section:
"40.-(1) Notwithstanding any other provision in this Act, a person who causes a published sound recording to be heard in public or to be broadcast or to be transmitted to subscribers to a diffusion service shall not infringe the copyright in such sound recording provided-
(a) he or she pays equitable remuneration to the owner of the copyright subsisting in the recording; and
(b) in the event of a dispute as to the amount of remuneration payable under paragraph (a) of this subsection, he or she undertakes to refer the dispute to the Controller and undertakes to pay to the owner of the copyright the amount of remuneration determined by the Controller to be equitable.
(2) For the avoidance of doubt, any reference to the owner of the copyright in a sound recording in this Act shall be taken to include a reference to the agent or licensee of such owner.
(3) It shall not be necessary to make an advance payment of equitable remuneration to the owner of copyright in a sound recording, but said remuneration will be recoverable as a simple contract debt.".
I presume amendment No. 21 was accepted in the name of the Minister. Is it correct that the Minister of State is resting his credentials on the mantle of Jack Lynch?
I thought it was proved conclusively on the last occasion that the Minister of State was moving in the opposite direction. I would like to hear him inherit the mantle because it is an important point.
We should deal with the question of the controller and so on in greater detail on Report Stage. We have gone over this ground twice already.
I am pleased that the Minister of State will consider this matter for Report Stage and come back to us on it.
I will give further consideration to what the Deputy has in mind.
Is amendment No. 29 withdrawn?
I will withdraw the amendment on the understanding that the Minister of State will table an amendment following consideration of the matter. People outside of this House want clarity on a number of important aspects.
We are going in the same direction but I assure the Deputy that I will tighten up the proposal.
Amendment No. 30 is consequential on amendment No. 100 which involves a potential charge on the Revenue. Amendment No. 30 is out of order.
We have already discussed the difficulty surrounding the controller and tribunal type of arrangement. Perhaps the Minister of State would come back to us on that issue.
I understand that as the amendment imposes a cost on the Exchequer it is out of order but I do not think the section should pass without hearing from the Minister on the important question raised in Deputy Stanton's amendment. This is a major question - to go down the road of the copyright tribunal would have one set of implications, to go down the road of broadening the scope of the controller would have another set of implications and so on. Can the Minister tell us his thinking on that? Ruling out the amendment is fine technically but its import is important.
We referred earlier to lookingat the role of strengthening the currentposition and the copyright tribunal and I said there are ongoing studies in that regard. Obviously we will be in a better position on Report Stage to give the Deputy finality on that issue. The question of resources will have to be dealt with also. All those issues can be addressed at that stage when we will be in a better position to embrace the thinking of the Deputies opposite and to try to marry them with my own.
I am interested to note the Minister has acknowledged that difficulties exist and that he will come back with suggestions to address them, be it through the controller or our preferred option, a copyright tribunal - perhaps not a permanent tribunal but one which could be convened as required. As there is a backlog of cases to be dealt with, a tribunal would be the speediest way of dealing with this. As Deputy Rabbitte said, it is a major issue and perhaps the Minister will let us know his thinking well in advance so we can prepare a response.
We will also have an option to deal with this at Part XI of the Bill which deals with the jurisdiction of the controller. It is an important issue and I am aware Deputies opposite have concerns.
Amendment No. 37 is in the names of Deputies Owen and Stanton. Amendments Nos. 38 and 39 are related and may be taken together by agreement.
I move amendment No. 37:
In page 43, subsection (2) (b), line 5, after "making" to insert "or the issues of copies thereof to the public".
This amendment involves making issues available to the public and I would be interested in the Minister's reaction to it.
My understanding is that the amendments aim to impose copyright sanction on the distribution of books in the State which do not take place within the normal channels of supply. I am advised that this point was raised by Clé, the Book Publishers Association, at the recent hearing of interested parties hosted by this committee. The Department sought legal advice on this point from the Attorney General's Office who advised that the distribution right in fiscal copies of works is governed by particular provisions of EU law. The office took the view that changes along the lines suggested here could infringe EU law on the distribution right which does not permit the Internal Market of the EU to have fiscal copies of works partitioned by copyright law provisions. Accordingly, I am not in a position to accept the amendments.
Is there an issue on statute of limitations?
I move amendment No. 40:
In page 45, lines 14 to 22, to delete subsec-tion (3).
This section deals with fair dealing. Section 49(3), to which I am drawing attention, seeks to make an exception. It states:
The copying by a person, other than the researcher or private student, is not fair dealing where-
(a) in the case of a librarian or archivist, he or she does anything which is not permitted under section 62, or
(b) in any other case, the person copying knows or has reason to believe that the copying will result in copies of substantially the same material being provided to more than one person at approximately the same time and for substantially the same purpose.
The object of my amendment is to excise subsection (3). I cannot understand why the instances given at paragraphs (a) and (b) do not to constitute fair dealing. I suspect that has been the practice up to the present and I am not clear why it should be changed.
Fair dealing exceptions must remain strictly limited and should not be viewed as avenues to which other categories of exceptions, such as those applying to libraries and archives, may be modified or broadened. The provisions which this amendment proposes to delete are essential in maintaining the fair dealing exceptions in their proper field. I cannot accept the amendment.
I am not sure I understand the Minister's explanation. Fair dealing provisions must remain limited for obvious reasons but why would that be considered to be an unreasonable application of the fair dealing doctrine in the case of a librarian in the circumstances posited by paragraph (a)?
This issue has arisen previously and in some cases we are obviously trying to stop multiple copying and all sorts of undesirable behaviour. I am not in a position to accept the Deputy's amendment.
Is the Deputy satisfied with the Minister's response?
No. We usually use Committee Stage for more than I propose and the Minister disposes. I would like to hear why.
Librarians, in this case, would have rules and regulations under which they can copy. We have to make this reference to librarians or archivists.
It could place an unreasonable restriction on a librarian.
They are responsible people. This Bill tries to protect private copyright holders and we must have a regime in place to do that. We have endeavoured to apply the fair dealing exception in a reasonable way. This is a reasonable approach. There are rules and regulations for all people involved in the legislation, including librarians and archivists.
Is the Minister saying that practices accepted as the norm by librarians or archivists until now may continue?
Yes. This will be the first time there have been exceptions for librarians. The Bill provides a limited defence in the case of copying done by a person other than the person engaged in research or private study. There is no defence under section 49(3)(b) save if a teacher makes multiple copies of a work for use by a class of students. A student or researcher may ask another student or researcher to make a copy of a work, provided that the terms of this exemption are otherwise satisfied.
Why does the Minister of State think librarians are concerned about this if it does not constitute a change?
There concerns for many people, including librarians. This has been inserted for clarity in the context of the fair dealing determination in section 49(4).
We will have to come back to this as it is not a compelling exposition of why it is necessary.
It is an important point, but it is one I referred to previously in the Seanad. The exceptions raised fundamental difficulties for copyright owners. It also raised the question of balance between the interests of copyright holders and society at large. In the context of private study and research, many rights holders have complained to the Department that their rights are being trampled on by unrestricted copying of works. While acknowledging the concerns of rights holders, a fair dealing provision in respect of research and private study, which has removed the current exemption for commercial research, is a balanced solution. Section 49 contains a definition of fair dealing which limits activities under the section to non-commercial purposes and it should ensure that rights holders' interests are looked after.
The Bill is biased at every point in favour of rights owners, whether collective or otherwise. I understand why scrupulous librarians will say they have been operating until now in accordance with certain practices, but if the Minister of State changes the law, they will be conscientious to ensure they do not break the law. There is, therefore, a dramatic curtailment of traditional practice. I presume that is what underpins the concern. It is ideological legislation. The Business Software Alliance or the collecting agencies have been given a sympathetic hearing but it is different for the working journalist, librarian or student. The balance is wrong, it has gone too far. This example is not the end of the world but it shows that imbalance.
This is linked to other parts of the Bill. If a librarian is asked for the same information by three people, he will not be able to supply it to any more than one of them. If three people are taking part in the same research in different parts of the world and apply to a library for copies of material, they will not be able to get it. Three students in Ireland will not be able to get copies of material from one central library. It is overly restrictive.
The constant complaint made by research students is that they are poorly paid to stay in education instead of taking up the offer of a job. There is no doubt that this will impose additional expense on them. Librarians are not the kind of people who will risk breaking the law and they will take a conservative approach. This is not necessary. I had not mentioned paragraph (b) but I do not know if the section on educational establishments excludes (b). Presumably a university teacher would not be able to give six copies of work to six PhD students.
It is a question of balance. Rights holders have rights but damaging the educational prospects of students is an unreasonable price to pay to assert their comprehensive rights.
As members are aware, on foot of the Seanad debate, we removed the word "private" from before "research". The problem is that the whole purpose of the Bill is to protect rights holders. That will permeate the Bill from start to finish and the committee is aware that exceptions must be limited. Having said that, sections 48 to 101deal with the question of exemptions and they are very wide ranging.
The area of education has been mentioned. As a former teacher I am very conscious of the sensitivity of that area and we will deal with that. Former teachers are all aware that the question of copyright frequently arose in education in the past. I know this from my own involvement in school performances and this will continue to be the position. My colleagues on the other side of the House will argue for further liberalisation. I have an obligation to protect rights holders but I do not accept that there is an unusual bias in the Bill. It makes provision for many exceptions.
I am glad the Minister of State mentioned exceptions. We must focus on the role of copyright which is not only to protect the rights holders but also to disseminate knowledge and information in a controlled way and to further knowledge and research. If one is restricted to making only one copy of unusual or unique pieces of literature the spread of knowledge and ideas is restricted. We must strike a balance. Paragraph 49(3)(b) states that copying is not fair dealing when it results in "copies of substantially the same material being provided to more than one person at approximately the same time and for substantially the same purpose". Restricting such copying to one copy is very restrictive indeed. Perhaps the Minister could examine this provision and expand it. I have suggested elsewhere that it be extended to at least three copies. Restriction to one copy limits knowledge and the spread of knowledge.
The motivation behind this section is to prevent multiple copying. If I can improve it in any other way and retain the balance I will try to do that between now and Report Stage.
Thank you Minister. Deputy Rabbitte, are you pressing the amendment?
There is no reason to believe that collection agencies, for example, would not assert their entitlements to the letter of the law. Recently a collection agency sought to collect royalties in respect of a school play and the advice I had as Minister was that they were entitled to do so. I held the contrary position in the Dáil against the advice of my officials and the agency concerned backed off. It is not acceptable in societal terms that the production of a school play would result in a collection agency arriving to collect fees. It is not something that parents would accept. If we enshrine rights and entitlements in this Bill they will be asserted to the full letter of the law sooner or later. We must get the balance right.
And in relation to amendment No. 40?
What did I hear the Minister say? Did he say he would look at it?
If I can improve it I will.
On that basis I withdraw the amendment.
Amendments Nos. 41 and 42 are related and may be discussed together, by agreement.
I move amendment No. 41:
In page 45, subsection (4), line 28, to delete "non-commercial".
I wonder why these words are included and if they make a difference to the section.
Amendment No. 42 proposes that "fair dealing with a sound recording by a person for private and domestic use and for non-commercial ends shall not infringe any copyright in the sound recording or in any work or right included in such a sound recording". This refers to people recording television programmes, for example, for their own use. I will be interested to hear the Minister's reaction to this proposal.
The amendment also seeks to establish that "fair dealing" means "the making use or copying of a sound recording or any work included in such a sound rcording which has already been made lawfully available to the public, for a purpose and to an extent reasonably justified by the non-commercial purpose to be achieved". This amendment is similar to amendment No. 41.
I thank the Deputy for his proposals. While I am not in a position to accept the proposals I would like to give them further thought before Report Stage. The key question is whether non-commercial purpose is essential to fair dealing. The general position internationally is that commercial purpose normally rules out fair dealing or fair use exceptions, but not inevitably so. It was my intention in proposing this section to adopt a clear rule which would eliminate the sort of damaging and expensive legal disputes which have occurred in jurisdictions such as the United States with regard to whether a particular allegedly commercial purpose ruled out the operation of a fair dealing exception. However, following from the present debate, I will give the matter further consideration before Report Stage although I cannot promise that the outcome of my consideration will be positive.
Amendment No. 42 reads as a general private copying exception on sound recording attempting to come under the heading of fair dealing. If this is so it would be inappropriate and would probably be unacceptable under international copyright law which would regard it as a serious interference with the normal exploitation of protected materials by rights holders. However, I will give further thought to the matter.
I presume that sound recording is defined in section 2.
Yes. It is defined in section 2.
In terms of amendment No. 42, is it clear that what is referred to is a recording of a musical work or something like that? Could it not be educative or relevant to our work, for example?
I cannot find the definition of " sound recording".
It is on page 28, line 22.
Thank you. "'Sound recording' means a fixation of sounds or of the representation therof, from which the sounds are capable of being reproduced, regardless of the medium on which the recording is made, or the method by which the sounds are reproduced". I presume fixation of sounds has a technical meaning in copyright law.
I presume it is an international definition.
There will be hell to pay in Jobstown where they reflect on little else other than copyright law if they hear that they may not record "Coronation Street" and that when the women come back from Knock they may not watch the episode they missed, collectively. The Minister will not be held in very high standing if this happens.
There is an exception for time shifting. Section 96 deals with the question of recording "Coronation Street", for example.
Section 96? I recall that this causes major problems.
We will deal with section 49 and then progress to section 96 or "Coronation Street", whichever comes first?
As it is now 6 p.m. I propose that we adjourn until 11 a.m. on Tuesday, 25 January 2000 when it is proposed that we should sit until 3 p.m. approximately. Is that agreed? Agreed.