Amendment No. 42a is in the names of Deputies Owen and Stanton. As amendments Nos. 43 and 44 are related, amendments Nos. 42a, 43 and 44 may be discussed together by agreement. Is that agreed? Agreed.
Copyright and Related Rights Bill, 1999: Committee Stage (Resumed).
I move amendment No. 42a:
In page 46, lines 10 and 11, to delete subsection (1) and substitute the following:
"(1) The copyright in a work is not infringed by its incidental and unintentional copying in a photograph, sound recording, film, broadcast or cable programme.".
The wording could be strengthened and tidied up by inserting these amendments. We suggest that the copyright in a work is not infringed by its incidental and unintentional copying in a photograph, sound recording, film, broadcast or cable programme. It is important to insert the word "unintentional" there. There seems to be some confusion among the people on whom this Bill will impinge about what is meant by intentional, unintentional, what is deliberate and was is not deliberate. Sometimes a person making a television programme must deliberately include other material - the person cannot avoid it. Such people are concerned about this.
I have sought to express a similar purpose in amendment No. 43, which is being discussed with this group of amendments. The inclusion of section 51(3), in particular, has given rise to serious concerns on the part of broadcasters. It is an habitual experience in making programmes of all kinds that there may be the incidental inclusion of something which may, in other circumstances, infringe copyright. There may be a backdrop which is incidental but is deliberately included, and subsection (3) would certainly seem to cause difficulties in those circumstances.
I am not sure why subsection (3) is in the Bill. Subsection (1) states that "The copyright in a work is not infringed by its inclusion in an incidental manner in another work.", but to some extent that is abrogated by subsection (3), which states that "A work shall not be regarded as included in an incidental manner in another work where it is deliberately included.". It would tie the hand of broadcasters, who resort to all kinds of tricks of the craft to present interesting programmes. The fact that a person might present in front of a particular building which might be envisaged to be otherwise complementary to the programme but which would fall foul of subsection (3) would be a pity, and I do not understand the sense of it.
The national broadcaster, RTE, outlined the following example, with which I am sure the officials will be aware also. If an interview is conducted in an art gallery, the interviewer will decide to stand the people involved at a particular point in the gallery which shows a picture in the background. It is a deliberate act to encourage people to stand at a particular spot. The reasons for this might relate to lighting, attractive cornices or to drive home the fact that the interview is being carried out in an art gallery. Someone might claim that copyright has been breached because they were standing in front of a picture or a printed copy of a poem. However, while it was a deliberate act to conduct the interview in the art gallery, the picture was incidental to the main thrust of the interview.
Concerns have been expressed that RTE or other broadcasters would not be able to use the defence that they did not deliberately set out to show a particular artist's painting, a copy of a poem or whatever but that they set out to conduct an interview in an art gallery. In that context, where is the word "deliberate" defined? Is it defined by the act of actually entering the art gallery or by the fact that an interview mightbe conducted in the vicinity of a particular painting?
That is the best way I can highlight that an interviewer, who might not be up to speed on copyright law, might not realise there is a problemvis-à-vis copyright by asking to conduct an interview in the vicinity of a work of art or literature. There is a need to resolve this problem. Will the Minister of State indicate whether the defence to which I refer can be used in respect of a deliberate act of choosing to conduct an interview in the vicinity of a work which is subject to copyright? I should point out that this could also apply to buildings in respect of which architects and owners claim copyright ownership.
I will try to explain the background to this matter to Members and indicate why this approach is being taken. If we consider section 51(3), it is useful, in order to make it absolutely clear, to note that deliberate inclusion of a work in another work can never be covered by the exception in favour of purely incidental inclusion. I would not, therefore, favour its deletion as proposed in amendment No. 43.
I would also have a difficulty in accepting the definition proposed by amendment No. 44 which would appear to redefine "incidental" to comprehend a range of presumably minor but nonetheless non-incidental inclusions. This would be inappropriate to the exception comprehended here which is intended to deal with incidental inclusions only.
As regards amendment No. 42a, the effect of this amendment is included in the current wording of section 51(1) and I would not favour the substitution of the more specific, less flexible text proposed in the amendment. In summary, amendment No. 42a is not broad enough.
I recall the lengthy debate which took place on this matter in the Seanad and I wish to give an example, as did Deputy Owen, regarding a work of art. My own instinct is that, in practice, this would not cause a problem for either the rights holders or the broadcasters. An example that would cause a problem, unless the Bill is left unchanged, would be where a song was played on a radio which appeared in a scene from a film. To a certain extent the song could be deliberately included which would infringe the copyright of the rights holder in question. That is one example - I am sure there are many more - where the inclusion of section 51(3) would be warranted.
There is a requirement to include the reference to the incidental inclusion to which I referred in respect of, for example, music being played in a record store which might be heard in the background of a programme filmed on Grafton Street. However, there could be a deliberate inclusion of a piece of music which would infringe the rights of a rights holder. In that case there is a need to refer to deliberate inclusion.
Who decides whether something is deliberately included? Subjective judgment is required in that regard. I would want to see people taking legal proceedings in order to encourage the courts to decide this. Does the Minister of State agree that the real test will be whether the interests of the copyright owner are prejudiced in some way by the inclusion of material? Does he agree that this should form the basis of the test, not whether the inclusion is incidental or deliberate? For example, a person could state that they did not mean to include something when they did. Who will decide whether an inclusion is incidental or deliberate? As drafted, does the legislation not lay a minefield for the courts and others?
On a point of clarification, as far as the legislation is concerned does a deliberate inclusion imply a commercial gain? I might point out that news interviews, the example to which Deputies Rabbitte and Owen referred, are clearly not designed for commercial gain and, therefore, do not infringe copyright. I would have thought that the addition to section 51(3) of the words "except where the deliberate inclusion is not for commercial gain" might enhance the provision. Perhaps the Minister of State might clarify the position.
I do not understand why subsection (3) is so clumsily or negatively worded. Why does it not state "A work shall be regarded as being included in an incidental manner unless. . . "? As it stands, the subsection places the onus of proof on to the broadcaster or programme maker. As I said, a programme makers or interviewers might come across the person they wish to interview standing outside a particular place. Door-stopping is a fairly common form of interview nowadays and I would not like to think the Government would claim a breach of copyright if the Minister of State gave a filmed interview outside Iveagh House.
It is grossly unfair to provide that every interviewer must ask interviewees to step away from the front of a building and stand instead in front of railings or bushes, over which no one can claim copyright, although the council may have something to say about that. What advice did the Minister of State receive that the subsection must be worded in such a way as to place the onus on broadcasters or programme makers? I would have thought that showing something in an incidental manner is not a bad thing for an artist.
Let us try to resolve this matter. When replying to Deputy Owen, perhaps the Minister of State will refer to Iveagh House and the vacancy which has arisen there.
There are plenty of works of art over there.
The Minister of State might like to stand in front of them.
I was there before.
We are infringing Deputy Cowen's copyright.
If the Minister of State is moved in the reshuffle, I pity the person who has to assume responsibility for the copyright Bill.
The Deputy should not be concerned, we might conclude our deliberations on the Bill today. On Deputy Conor Lenihan's point, commercial gain would not be a factor because a person's copyright could be infringed without commercial gain being made. The thrust of the Bill is to try to give rights holders the greatest degree of certainty possible.
In my opinion rights holders would not, in the main, take action in relation to the examples to which Deputy Owen referred. She is correct, many people might be flattered to have their works - whether musical, artistic or architectural - included in an incidental way and we should be conscious of that in debating this matter.
Deputy Stanton asked who is responsible for deciding whether an inclusion is deliberate or incidental. It would be a matter for the courts and more luck to them. Many rights holders would not, as far as I am concerned, take action against broadcasters in many of these cases. I gave a good example of a deliberate act and it may have arisen in the debate in the Seanad. It has happened in an Irish film that is a scene with someone driving along a song came on the radio. I think there may have been an action on behalf of that rights owner, the writer of that song - perhaps my officials will know. That film might be a big box office hit and in that case we must protect that individual.
That is obvious because making a film is a deliberate act.
That could be described as incidental music but if half the song was played, a case could be made for protecting the rights of the writer. My main concern is to protect copyright rights owners which is what we are trying to do in this section. We should not be overly concerned with the specifics and creating problems for ourselves. In many cases, rights owners would not be overly concerned.
The crux of the matter is that this arises when the interests of the copyright owner are prejudiced. This is the test which the courts will probably take at the end of the day. Perhaps the Minister of State will look at my proposed amendment on Report Stage. This issue is fraught with danger and by failing to tighten the legislation and allowing the courts to deal with it, we are abdicating responsibility. We are not happy with this element of the legislation, as worded. I ask him to tidy it up and to come back to it on Report Stage.
The Minister of State tells us we should not be overly concerned and we should not distress ourselves about the interpretation. I have heard many arguments advanced in favour of enacting legislation but that is certainly a new one. The law is the law is the law and it is not for the him to tell us how whatever is written here is likely to be interpreted and that it will be interpreted in due course by the courts if that arises. There is an obsession with the man driving in the fast car playing music and it seems to warrant enshrining in the legislation a particular formula that can and will be used in many other less serious situations.
Tribute has been paid to the Minister of State's officials, with which I agree because this is complex and difficult legislation. However, looking at this section and the ones to come it only struck me forcibly last night how appallingly bad the explanatory memorandum is. It is the worst explanatory memorandum I have ever seen for any legislation in my experience in this House. It does not even seek to explain the import behind different subsections. Quite frankly, for a Bill introduced in the other House almost a year ago, not to have presented an up-to-date explanatory memorandum is tantamount to an insult to the members of this committee and the legislators in the Lower House. It is the worst I have ever seen.
There is absolutely no doubt that the Bill is so biased generally in terms of protecting rights holders that it is tantamount to restraints on individual freedoms in society. This section is not the worst example. It is extraordinary that in order to protect the man in the movie playing the music on his car radio, broadcasters are put at risk, in terms of deliberately including matters which would otherwise be regarded as incidental inclusions. That is immensely regrettable. The purpose of making television programmes, whether news or otherwise, is to try to make them interesting. Anywhere rights holders are given the right in law to assert a right from which derives commercial gain, they will do it. At the last meeting I instanced the attempt to intrude into a school drama and collect fees for same. They will do it.
I am not persuaded. If the Minister of State wants to include an express provision for the making of movies - unless he has other examples which we will discuss as we hear them - let him do so, I have no great thoughts about it one way or another. I thought it would be a boon to a songwriter to have his song adverted to or some excerpt of it played in a movie which would get some exposure. I am not an expert in the area. However, there is no point in the Minister of State saying "We are making the law, but you can take it from me, lads, the rights holders would not bother with that situation". We cannot make law on that basis. In the case of the school drama, one would not think the rights holders would try to get their foot in the classroom door to levy fees but they did. I am not persuaded.
Deputy Rabbitte has broadened the debate somewhat. He knows well there have been particular copyright provisions - he included the school drama, which prevailed in his time as well as mine. There is no point trying to move the goalposts on this issue. I am looking forward to the debate on education because we are dealing with issues with which the last Government also had to deal. Nothing has changed with regard to the way the law of the land prevails. There are particular laws relating to these property rights, as we call them.
As regards incidental and deliberate inclusions, our proposals are much more favourable to incidental inclusions. This section is about the incidental inclusion of copyright material. There is a reference in section 51(3) to the other side of the coin, so to speak. I am predicting - we will see how it will pan out - that we will not have as many cases in the courts as one would expect. As has been said, in many cases, people will be happy to have their work or parts of it included in this way.
I defend my officials as regards the comments made on the quality of the back-up material. The reason the material is in many cases complex and cumbersome is that this is, as has been agreed, very complex legislation. I have always endeavoured to make our debates as consumer-friendly as possible. However, in some cases we cannot do that because of the large amount of legislation going back to 1956 and 1963 and all the related EU and international instruments.
I have examined this and it was debated in the other House. There are other examples on which we can draw but I cannot give them off the top of my head. I have given one but there are other reasons why this is included. It is in the interest of balancing the legislation and I ask that the section as it stands be agreed to.
I am told the programme makers have great difficulty with this section and that they will be conscious of this measure when they make programmes, which may lead to a diminution of the standard and quality of programmes. If a person were aware in making a programme that certain items were being included, he or she would exclude those items. The effect of this measure will be to force programme makers to exclude all types of items from their programmes because they will be afraid that it might be thought they were deliberately including them. We will be much poorer as a result. The Minister of State should not force this to a vote but re-examine it. He can see the depth of feeling.
Will the Minister of State examine amendment No. 44? If this is to end up in court - I do not share his complacency or sense that there will not be a number of court cases - is it not better that the decision of the court will be on whether the copyright was infringed rather than whether someone deliberately stood in front of a painting or a building? He should think about how this will be argued by lawyers in court. They could ask questions about whether a person deliberately walked down a street and stood in front of something. What is more important is whether a rather ugly picture is placed in the background of an interview to heighten its content, thereby prejudicing the painter by having his or her painting shown in a bad light because the spoken word was married to it. When framing the legislation, the Minister of State should think in terms of how it will be argued in court and on what point of law. If I were a copyright owner, I would much rather argue that my copyright and good name were prejudiced rather than ask if a person walked down the street and stood in front of my painting.
The Minister of State has given comprehensive responses.
It is not possible to set absolute rules on legislation. If one were to examine the many other sections we have discussed, one would realise that. We would love to have absolute certainty in legislation but there will always be scope for interpretation. I accept the thrust of what Deputies Stanton and Owen have said about programme makers. There may be something the programme makers may have to say to me between now and Report Stage in addition to what they have already said. I do not wish to infringe their rights to create artistic work. That is an important point. If there is another dimension to this we need to address, I will do that between now and Report Stage.
Many rights are involved, especially those of programme makers. I have met many delegations on this matter and if there is another dimension to their presentations and submissions which they could reinforce to me or my Department I would be glad to try to deal with it. It is very difficult to get absolute certainty and I am conscious of that not just regarding this section but the many others in the Bill.
That is helpful. How stands amendment No. 42a?
The Minister of State says he does not wish to impede programme makers' rights and then proceeds to do precisely that. This is similar to the last occasion when he said he did not want to adversely damage the standing of journalists and went on to do precisely that. I do not know when we will receive the written texts of the proceedings of 18 January, but the Minister of State has a habit of including many conciliatory remarks in the middle of his responses to amendments which have no relation, good, bad or indifferent, to the thrust of the point being asserted. This is a good example.
It is not good enough to say he can think of one example off the top of his head. He is surrounded by staff who have been immersed in this legislation for a long time and this committee is entitled to more than one example off the top of his head. If that is the example on which we are working, then we will allow the Minister of State to return with an amendment which protects the situation of rights holders in the making of films. However, it is not an adequate argument to say that, in return for doing that, we should also place broadcasters in a straitjacket in terms of the traditional freedoms they have enjoyed to incidentally include something for creative purposes. In other words, something is deliberately included but is incidental.
Those are contradictory words.
Does the Minister of State wish to add to anything?
I am satisfied that what I have done is well balanced. Deputy Rabbitte referred to journalists. In that case I brought a balanced result to the committee. I do not wish to reopen that issue but the balanced result was a compromise between the rights of the newspaper industry and those of journalists. I gave journalists specific rights. If I make conciliatory remarks, they are on the basis of what I am trying to achieve, which in many cases is a sense of balance between competing rights. In this case, there are also competing rights. If I make conciliatory remarks in this case, then it reflects what I am trying to achieve. I am not trying to hide the reality behind the legislation.
How stands amendment No. 42a? Is it being pressed?
I will say how it stands; inadequately explained thus far. What is the purpose of this subsection other than to provide for the example given by the Minister of State in respect of the making of a film? Does it have any other application? If it does not have any other application, then it ought to be possible for the him and his advisers to devise an amendment which encompasses that situation. It is not a sufficient reason for putting broadcasters into a straitjacket whereby they must monitor whether they are complying with copyright law.
In light of Deputy Rabbitte's question, does the Minister of State have a response?
Deputy Rabbitte seems to wish to push this and I have no problem if he wishes to push it as far as a vote. At this stage we are going around in circles. I mentioned a musical or a song in a film. It does not require officials or a team of advisers for the Deputy or me to think of other examples when it comes to artistic works. The Deputy could cite a case of a painting as part of a broadcast or a film. All one need do is look at a number of art forms and combine them with another or include one in another work of art.
The Deputy says he is not an expert in this area, and clearly he is not if he cannot think of an example to fit in this category.
It is not my job to think of examples to justify the Minister of State's legislation.
I have just given the Deputy an example.
He said it was possible to combine a piece of art with another piece of art.
I mentioned a song played on a car radio in a film.
That would not be described as incidental.
One could also mention a producer of a film who deliberately included a work of art, a painting, for example, without the permission of the artist involved and thus infringed the copyright.
I do not understand that last contribution. I am not here to push votes for the joy of losing them. I am here to try to scrutinise this legislation and to get an understanding of what is involved. I am happy to give the Minister of State all the time he wants to have more examples given to him and, if they are presented to the committee, I will examine them. However, it is not my job to think of examples of what is intended by some of the daft proposals in the Bill.
May I refer to what the heads of the universities submitted on this? They are a reasonably intellectual bunch of people who, I hope, have an understanding of legislation. On section 51(3) and incidental inclusion they say that the inclusion of a work in another work can be incidental in the sense that the work might not aim to include another work while still deliberately including in the sense that the person knows that the making of the first work will, of necessity, include the other work. It seems that the words "incidental" and "deliberate" are contradictory and different words.
The example the Minister of State keeps giving us is not valid. If one makes a film, every part of it is sorted out, including the background music. We know that is deliberate; it cannot be described as incidental. However, when a broadcast is made and one is talking about a person or doing an interview and one is caught in front of something, that is incidental but also deliberate. I am not satisfied that there is going to be a legal interpretation here and that problems will not arise with RTE, TV3 or Channel 4 infringing copyright. I do not know if this is in the UK legislation and whether we need this section.
We have given the section a lot of time and I would like to move on.
Deputy Owen referred to the wording and I see how something could be deliberately incidental. Going back to my example, one could argue that if someone turns on a radio in a film that might not be planned. I am happy to——
If one is making a film one knows exactly what is happening every minute. It is not a live broadcast of someone driving along and turning on Pat Kenny or Marian Finucane. They know well what radio show will come on.
I know from my experience of films that that is a common situation. Even in dramas on RTE one may have broadcasting in the background, so one can have broadcasts within broadcasts. I am happy to look at the word "incidental" here and its relation to "deliberate" between now and Report Stage. I can see the need for us to cater for the position where there is deliberate inclusion of a work. I suggest we look at "incidental" and "deliberate" on Report Stage, but I am leaving this as it stands at this stage.
I presume it is the legitimate intention of subsection 3 to protect, for instance, a work or the author of a piece that is used in, say, an interview with Deputy Owen in a gallery. If music was playing in the background which was subsequently used by the TV station to promote itself, the copyright holder of that music should be protected in those circumstances. The music may have created an atmosphere for the interview. There is a reasoning behind subsection 3, which is to protect the copyright holder from incidental inclusion in the background of an interview, but subsequent deliberate usage of the combined image of the——
That is why my amendment is so sensible. It is precisely to protect someone when a piece is deliberately used.
It is important to note that the last sentence of the submission of the university heads, to which Deputy Owen referred, is "Subsection (3) of section 51 should be deleted."
Yes, they asked for it to be deleted.
I have the same high regard for the heads of universities that I have for the Minister of State and his officials, but that does not mean that what they assert is manifestly true. However, until there are some arguments as to why this should stand, the argument of the university heads seems as good as any other to me.
I move amendment No. 43:
In page 46, lines 15 and 16, to delete subsection (3).
I move amendment No. 44:
In page 46, subsection (3), line 16, to delete "deliberately included" and substitute "included in a manner where the interests of the owner of the copyright are prejudiced".
It mat be helpful to indicate that amendment No. 45 will be accepted.
I move amendment No. 45:
In page 46, subsection (4), line 18, after "quotations" to insert "or extracts".
I move amendment No. 46:
In page 46, before section 52, to insert the following new section:
"52.-The copyright in a work is not infringed by its publication in the public interest.".
I am trying to provide a new section here, the object of which would be to permit publication where the public interest requires it. The section reads: "The copyright in a work is not infringed by its publication in the public interest." In other words, the court would have the right to determine whether publication is in the public interest. There seems to be a need to enshrine, somewhere in the Bill, the very important overriding consideration of the public interest, because, as the Minister of State acknowledges, the purpose of the Bill is to protect rights holders. This has swung so far that it is damaging to society and this amendment merely allows publication of a document in the public interest.
In this case EU and international law makes no allowance for a general public interest defence to copyright action. One problem with such a defence would be that it would appear to be open to serious abuse, with unmeritorious defendants claiming to have committed infringements in the public interest in order to frustrate or delay rights holders seeking to uphold their rights at law. I have not had the opportunity to take legal advice on this matter and it may not be possible to arrive at a clear answer in time for the Report Stage. However, my view at this time is that an amendment along these lines appears neither advisable nor legally acceptable. In any case, copyright is very much in the ha'penny place as an inhibitor of disclosures in the public interest compared to the laws of defamation or confidence, matters which must be addressed in contexts other than this.
Will the Minister of State clarify whether he may change his mind on this by Report Stage?
My position is that there is a need for more legal advice on this question, but EU and international law does not generally allow for a public interest defence to copyright action. This area is best dealt with under the laws of defamation and confidence. I will have a very clear answer on Report Stage.
I am not sure I understand why the Minister of State does not have a definite note in terms of the legal advice. He will be aware that submissions were made to us advocating that this explicit provision for the public interest is necessary. It is not difficult to envisage circumstances where, for example, the publication of a document may be deemed to be in the public interest and where a court may subsequently so decide. The notion that it would become a defence to frustrate rights holders is a little far fetched. There is not much point in my asserting that something is in the public interest if, in the mind of the reasonable man, it manifestly is not. Whatever about being puzzled by the absence of a definite note, I am enthralled by the notion that between now and Report Stage we cannot obtain a definitive legal opinion on the matter. I cannot accept that.
It may seem strange coming from this side of the House but I have concerns about this amendment which have not been answered by the Minister of State. There is no definition of public interest in the Bill and one could not include a clause such as this without such a definition. A concept of public interest has been used in other legislation but it would have to be clearly defined if it was to be used in this legislation otherwise, as the Minister of State said, it could be open to abuse.
I would like to be sure that if this amendment and some concept of public interest is not used, officials would be able to assure us that, section by section, the protection of what we colloquially know as the public interest is accepted throughout the Bill. This is one such concept of public interest under education where exceptions are being built into legislation so that educational institutions, students and so on are exempt from copyright, and that is welcome. That is mostly the case in that the Minister of State is stipulating exceptions and, hopefully, he will accept amendments concerning librarians and so on where the public interest is not being covered because people are being prevented from obtaining information. I am not necessarily speaking against Deputy Rabbitte's amendment but I do not think it has been properly explained to him why it cannot be accepted.
This Bill was published a year ago and the concept of public interest must have been on the minds of officials throughout its passage. That is why I do not know why there is no explanation similar to that I am outlining whereby, section by section, the public interest is covered. Why did the Minister of State not give this as the reason?
I too am intrigued. I know of no situation where, legally at least, copyright has been invoked to frustrate the pursuit of the public interest. I suspect that the Attorney General's advice was the same - that other legal or public interests that may be in place could supersede copyright and that mere ownership of copyright is not an absolute defence against criminal prosecution or whatever. I cannot imagine a situation where someone would invoke copyright. The most recent example is where the Government refused to publish a list of people who, allegedly, held offshore accounts. The Government did not invoke copyright on that occasion but cited a different reason. It is unrealistic to expect a public interest aspect to this as coppyright would be the least useful tool to invoke to frustrate the public interest, even if it can be used.
I support this amendment. There is an established concept of the public interest. One would find it in the courts, for example, concerning a dispute over the costs of a High Court or Supreme Court case. In many instances where an individual or small people, so to speak, bring a case on a point of law or concerning a major planning application and lose the case, the court accepts an argument regarding costs that the case was brought in the public interest. The courts would accept that, for example, this was a test case and that they had taken cognisance of this fact in awarding costs. I do not understand why a similar concept cannot be applied to copyright.
The Government is saying that it cannot see instances where this might arise but, for example, it could apply in the case of the power the Minister of State is conferring on newspaper owners. In such cases a journalist in the employment of a newspaper is debarred from copyright but, in particular instances, the publication of material discovered by the journalist while in the employment of the newspaper would be barred from republication where it might be in the public interest and might restore some balance to the journalist. The amendment would remove some power from those sections of industry, including newspapers, which are being given an inordinate amount of power by the Bill.
I call the Minister of State to reply on the issue of publication in the public interest.
I am not aware of cases where people have prevented the publication of material on grounds of copyright. Perhaps colleagues will be able to tell me of such cases but I am not aware of that. The publication of articles and so on would involve consideration of legislation on defamation, libel, etc. There is a public interest aspect to all the exceptions and I accept Deputy Owen's comments. However, on a strict legal basis, exceptions must be specific and limited. Legally there is a problem as this amendment is not specific or limited. The amendment was tabled relatively recently so I am outlining the legal arguments why I am opposing it. However, I have made it clear that we need additional advice from the Attorney General's office which I have not yet received but I will have it by Report Stage. The legal arguments are strongly stacked against this amendment.
Given the Minister of State's reply I obviously misheard him on the first occasion. He is now saying that he will have the expert legal advice on Report Stage.
I think I said that I hoped to arrive at a clear position by then. I will make every effort to do so.
The Minister of State's comments will be on the record. I agree with Deputy Lenihan that the Minister of State's main defence against accepting this amendment is the unlikely situation that it would be used to frustrate rights holders. It seems extraordinary in a Bill which goes to great lengths to protect collection agencies by conferring new rights and entitlements on them and protects rights holders generally, that it cannot provide for a public interest dimension. Section 67 makes provision for copyright in a work which is used "for the purposes of parliamentary or judicial proceedings". Copyright in a work in those circumstances cannot be infringed. It seems to me that as well as parliamentary and judicial proceedings, for example, a newspaper or other media could believe that a work in their possession ought to be made public in the public interest. If anyone wishes to challenge this it can be ruled on. However, it seems to me that this is not unlikely. I am not sure I understand Deputy Lenihan's comments in relation to the Ansbacher list. I agree that their concern about copyright is probably way down the line. However, I am sure there are other instances where putting something in the public domain could be deemed to be in the public interest. This committee has no express public interest dimension.
The Minister sets out in subsection (1) that to do X, Y and Z does not infringe copyright. He goes on in subsections (2), (3) and (4) to constrain that to such an extent that almost the right in subsection (1) no longer exists; it narrows it and narrows it and narrows it until it has almost no meaning. That is a pattern throughout the Bill. I cannot but be impressed by the argument made by the Leader of the Seanad when he concluded his remarks on the Bill by thanking the Minister, his officials and Dick Doyle for writing the Bill. I do not know where he got that idea, but it is fantastic. Somebody must have told Senator Cassidy this. The more one reads the Bill, the more one thinks the Senator has a point.
Did he say that?
I would have thought the Minister of State would have more people to look up the record than I have.
We have made some progress on amendment No. 46. How stands the amendment?
Severely battered at this stage. I will consider my position for Report Stage when the Minister will have the full battery of legal ammunition to deal with it.
Amendments Nos. 47 and 48 are cognate and will be taken together by agreement.
I move amendment No. 47:
In page 46, subsection (2)(a), line 28, after "by" to insert "or on behalf of".
I am struggling to understand the mentality of the framing of legislation such as this. This section deals with copyright in an education context, whereby something happens habitually that would otherwise be in breach of copyright. Subsection (1) seems to permit photocopying for education purposes. Section 52(2) reads, "Subsection (1) shall not apply unless -". One must then comply with a list of unlesses. One is that the copying is done by a person giving or receiving the instruction. This means that unless the copying is done by the teacher, it is in breach of copyright. Each section so far in the Bill weighs against the public interest and on behalf of the rights holders, even to incurse into the area of education. My amendment provides that the busy teacher can ask a student in the class or a classroom assistant to do the copying. It is worrying that this runs through the legislation. In an era when it seems that rights holders are better organised, better resourced, better protected and the works in which they have the rights are more exposed, it is strange to make cutbacks on the public interest and, if it means putting a policeman at every photocopier, apparently the Minister is prepared to do so, just as he was prepared last week to put a policeman in every bedroom to see if there was a television in it. This is George Orwellian stuff. I am offended by this, but I can only say so so many times.
On the Deputy's point that the teacher can allocate a child to do the photocopying, suppose the child breaches confidentiality and brings home a couple of copies which get into the wrong hands, is the teacher responsible? Is this a serious matter of imposing this responsibility on the teacher?
Section 52(3) reads, "Subject tosubsection (4), the copyright in a sound recording . . . . is not infringed”. Then there is a list of unlesses. The section provides that it is infringed therefore unless the copying is done by a person giving or receiving instruction. Subject to subsection (4),subsection (3) shall not apply unless the copying is done by a person giving or receiving instruction, or unless the copying results in only a single copy being made. We are talking here about film and sound broadcasting. Does this mean that in the case of sound broadcasting copyright is not infringed provided only one copy is made? If a French or German tape is made to teach students a language, is one infringing the copyright if one makes 12 copies of the tape to put in the machines on the desks? Can the teacher make only one copy of the tape for the whole class, even though most of our education establishments now have language laboratories where there is a series of machines or students are asked to bring in their Walkmans or whatever? Is this infringement?
Multiple copying of that nature would be prohibited. From my experience as a teacher, one would expect people to purchase certain equipment, including tapes. Multiple copying is not permissible.
It does not say that about written work. It mentions copying done by a person, not by means of reprographic process. Would that constitute multiple copying?
That is photocopying, which is dealt with in section 56(2).
Although there is an exception for educational establishments and instruction, it is a limited exemption. In the education system much more is done using teaching aids such as video and audio equipment than was the case when the Minister of State was at school. The Bill appears to be generous about our children's education but it is not in that copyright is infringed if a teacher makes a copy of a tape for each pupil. There will be no multiple copying.
This is an area where the question arises of the rights of collecting agencies such the Irish Copyright Licensing Agency, which would protect the rights of those producing educational material for schools. As in the past, there will be provisions in the section to protect those rights but I have tried to make it as user-friendly as possible. Section 56(2) will deal with that.
The Minister of State is aware of the new techniques in audio taping in schools. If this section is inserted into the Bill how will it be policed? It will be impossible to do that with children studying in every school in the State. Tapes are to be found in every home in the State. I cannot see how anyone could even attempt to say this could be policed.
Has a limit been placed on the number of copies which can be made? Up to 5% can be copied from any work. Does that mean that each child in a class can receive photocopies of 5% of any work?
How can the duration of copyright be policed? It is unworkable.
The discussion has been very interesting so far. We are entering a litigation minefield with this Bill. The legal profession must be grinning in anticipation of the opportunities which will be presented to its members. It gets more and more ridiculous. Deputy Rabbitte raised the question of a teacher allocating a pupil the responsibility to copy an item. If the pupil takes more than one copy, is that teacher responsible?
This section does not deal with photocopying, people are confused about that. Section 56(2) deals with photocopying. The Bill depends on rights holders asserting those rights, a collecting agency in this case. If that did not happen their rights would be exploited. If multiple copying was allowed, however, and a tape was produced for schools and then copied 40 times by every school, the composer would not make much of a living. That is the other extreme. We are trying to put a regime in place to deal with that.
There is nothing new in this, such rights exist already. I accept that there is a need for the Department of Education and Science, schools and those who collect for rights holders to sit down to work this out in a practical way. Efforts were made to do this in the past and there is a need at a practical level to work this out now. This section of the Bill endeavours to protect the rights holders and to deal with the practicalities.
It will be difficult to measure the 5%. The Bill, however, depends on rights holders asserting their rights, that is how it is pitched. My understanding is that there are arrangements made between schools, the Department and rights holders. That is how things will pan out. This Bill attempts to put some order on the situation and to ensure that there is a management regime in schools. It is difficult to be absolutely certain in this area but we are attempting to be so.
This matter is akin to software and video piracy. The technology has expanded so much that even stronger legislation is needed to protect the copyright holder. Deputy Owen mentioned that a class of 12 year olds could copy and recopy copyright protected works very quickly. Those could be made available commercially. This has happened in schools, let us not pretend that all children are wonderful. More stringent legal controls are required in a technological era to protect the originators of software of artistic work.
Deputy Lenihan should be taken into consideration in terms of developments outside the committee. He does his best to perform a rearguard action for the Minister of State but there is no comparison between this and software piracy. We talking about the classroom here, about educating our children.
It can happen in the classroom. Deputy Rabbitte might have been very well behaved at school but not everyone is as well behaved.
There is software in the classroom and music on the Internet. There is a clear linkage.
There is not. No one is arguing against the rights of creative artists, rights holders or collection agencies, within reason, but those rights must balanced against the needs of society. We live in a society where the children in the classroom are spending money which was unimaginable in this State 20 years ago to buy the products we are seeking to protect. There is a commercial environment we could not have envisaged. It is now proposed to enshrine in law something as prescriptive as this so that children in a classroom are limited in terms of photocopies. I know that paragraph 52(4)(b) does not refer to photocopies but there are other sections which do. This paragraph refers to film. I can envisage where it would be essential for a film appreciation class, for example, to have two copies of a film. The Bill says such a class may only have one copy. I have great regard for the Minister of State but I do not know to what extent he involved himself in establishing this balance.
If he keeps saying it he will believe it.
It is the Minister of State's duty to do this. His excellent civil servants are watching the situation as Bill Gates and the European Commission agree how they will run the world but it is the Minister of State's job to ensure that there is a reasonable balance and that children in a classroom can make photocopies and have reasonable access to teaching material. They are the consumers of the future and those people whose rights we are seeking to protect will profit from children being exposed to this material in school. I wonder to what extent the Minister of State has looked at the Bill——
——in terms of balancing the rights and freedoms of society and not putting a policeman on duty at every photocopier and in every hotel bedroom.
The likely area of challenge to this legislation will be a soft touch such as an educational establishment. This is where copyright will impact most strongly on the public and we must protect the rights of people who have done original work. That is why the necessary protection for copyright must be built into the Bill. However, the Minister of State is presenting this section as one which protects the public interest and safeguards educationalists against having their hands tied by being prevented from using certain materials. It is only as we discuss the Bill that its intricacies become apparent. Apart from the officials of the Department and sectional interests, only about half a dozen politicians have given this matter any great thought. Why is there a separate section dealing with photocopying? How does one reproduce a typographical arrangement of a published edition if not by photocopying? Why does the language of the Bill include so many negatives? Why can subsection 52(2) not say "Subsection (1) shall apply as long as --" instead of "Subsection (1) shall not apply unless --"?
One of the Deputy's amendments has a double negative.
It probably does but we are all learning from the Department. We know we have a chance of having our amendments accepted if we copy the language of the Department.
I do not understand the import of this exception. I can understand the reference to dramatic or musical works because they could be copied on film or tape but how can one copy a typographical arrangement if not by means of a reprographic process? Could it be copied photographed or copied in long hand? What is the point of this subparagraph? Subsection 56(2) stipulates that not more than 5% of any work can be copied. Is a teacher to copy 5% of a play, for example, and have the students make up the other 95%? Can the Minister give a practical interpretation of sections 52 and 56 for a drama teacher who wants a class to perform "The Pirates of Penzance"? Must the teacher buy 40 copies of the libretto?
Deputy Owen has unearthed some wording from the 1963 Act. I have tried to eliminate legalistic language but there are huge legal restraints because of the Berne Convention and so on.
What have I unearthed?
The term "typographical arrangement" refers to the form of the type and so on. I will look again at the wording of this section and its relevance.
That will make no difference to the point raised by Deputy Owen. Typographical copyright subsists and is also relevant to section 53 but it is not relevant to Deputy Owen's question.
I am still wondering why this is so limited and how it will work.
Minister, are you indicating that you will look at section 52 before Report Stage?
There is a problem with regard to the point made by Deputy Owen. Copying means copying something down by hand or otherwise and this goes back to the 1963 legislation. The reprographic process is dealt with later in the Bill.
It is not, in fact. It is dealt with later in section 56 by saying "Not more than 5% of any work may be copied by or on behalf of an educational establishment under this section in any calendar year". What use is 5% of a libretto if a school is producing a musical work?
The figure of 5% is laid down in law but, in reality, a licensing scheme is in place.
Does the Minister not intend to delete section 166?
No. There will be provision for a licensing scheme, as there is at the moment.
But it is voluntary; it will not be certified.
The Deputy is correct. It will not be certified but a licensing scheme will be allowed for.
There is no point in saying this matter will be dealt with later in the Bill. I need to understand how I can assure a teacher that he or she will be protected by an uncertified licensing scheme. I hope the Minister of State will think about this.
I am thinking about it.
One hopes he will never be sent back to the classroom.
On foot of what Deputy Owen has said, I am questioning whether this section serves any purpose. I will examine it.
Will the Minister examine the whole section?
I will examine the typographical arrangement.
But that is merely a technicality which I quote as an example. The whole section concerns me. It is very limiting for an educational establishment and the chances of policing it are slim. I am afraid that someone will walk into a classroom to enforce this law and the people who end up in court will be teachers who are doing their best to teach children, not some disco owner who is breaching copyright in a serious way. I am afraid that we will end up with a bad example.
There has been progress in that amendments Nos. 47 and 48 have been accepted and the Minister has given a commitment in relation to Report Stage.
I move amendment No. 49:
In page 47, subsection (1)(a)(i), lines 16 and 17, to delete "and is so described in its title".
I find it hard to work myself up to the same indignation again but this is unbelievable. This section deals with whether copyright is infringed in respect of anthologies for educational use. The amendment seeks to delete the words "and is so described in its title". That relates to subsection (1)(a)(i). However, that is not the full import of the horror before us.
The section follows the typical pattern of the Bill. Subsection (1) provides that, subject to subsection (2), a short passage from a literary, dramatic, musical work, etc., may be included. It then goes on to give a list of conditions. In other words, if one has an anthology of poetry intended for use in an educational establishment, it will have to say that in the title.
I am not up to date on school text books but I have a layman's knowledge of anthologies. I do not recall any anthology which stated "this is intended for use in educational establishments". We would expect teachers to bring anthologies to the classroom which do not have this printed on the cover. This is another example of the Minister appearing to say in subsection (1) that this is an exception for the classroom, at which we should all cheer and declare it is good. Then, however, we discover that he has straitjacketed that exception with so many conditions that it is virtually meaningless. We are only talking about the inclusion of a short passage, not reproducing the entire text of "The Ancient Mariner" or some other work. However, unless this is included in the title, that cannot be done.
I am lost. Deputy Owen made a point about language. Section 53(1)(a) states:
(i) in educational establishments and is so described in its title, or
(ii) in any advertisements issued by or on behalf of the publisher [which is fair enough but the next line reads]
(b) consists mainly of material in which no copyright subsists.
That appears to mean that (a) and (b) must be present because the provision says "and (b)". Section 53(1)(b) states: "consists mainly of material in which no copyright subsists". That puzzles me. First, I do not know what we are making a fuss about if no copyright subsists. Second, I cannot conceive of an anthology where, at least in so far typographical copyright is concerned, copyright does not subsist. It must subsist. I cannot understand this.
Even if it were a magazine, copyright would subsist.
Expecting somebody to comply with those conditions is like taking on the test which Fionn Mac Cumhaill had to undergo when he had to run through the forest at 50 miles an hour, pull a thorn from his foot at the same time and do a number of other things. Provided one can comply with those conditions one "shall not infringe the copyright". The subsection states: "shall not infringe the copyright in the work where the work itself is not intended for use in those establishments and the inclusion is accompanied by a sufficient acknowledgement". Can the Minister give a relevant example? What type of situation does he envisage where the copyright on the work is not infringed and where the work itself is not intended for use in those establishments? I am sure there is a logical answer but it is difficult to divine it.
Subsection (2) states that subsection (1) does not authorise the inclusion of more than two excerpts from works by the same author in collections which have been lawfully made available to the public by the same publisher within a period of five years. The provision is phenomenally prescriptive. How would an editor know that? Anybody who wishes to compile an anthology of Romantic poets will have to not only be an authority on Wordsworth, Shelley, Keats and so forth but also an expert on copyright law. Otherwise he will produce an anthology and just because Keats is included more than twice, it will fall foul of this subsection.
Here we have a freedom which most reasonable people would consider sensible but it is then qualified out of existence. That is the pattern of the Bill.
It will be the end of anthologies in schools.
Many questions have been posed by the members. Deputy Rabbitte has indicated he is lost.
Perhaps the Minister of State can offer a solution to your problem.
That is what Committee Stage is about, sifting through a lengthy Bill. This exception is designed to apply to anthologies intended for use in educational establishments. Where this is the intention it is not unreasonable to expect a description on these lines to be included in the title. It would be unfair on rights holders to materials included in anthologies in general which might be used in educational establishments to be subject to a similar exception. Indeed, such a sweeping exception could be seen as contrary to international corporate law in so far as it would not be specific and could signficantly undermine the interests of some rights holders. That is why it is necessary to maintain the explicit link with educational use.
Deputy Rabbitte referred to Keats and other poets. Those poets have been dead for more than 70 years. That is the point. In many cases a leaving certificate anthology would include poets of whom about two-thirds might be out of copyright. We want to deal with the case of modern poets who are not out of copyright and to ensure that the schools do not get hit for copyright. The public interest is the thinking behind this provision.
That does not answer the case. I am surprised the Minister's note does not address my amendment. What is his response to it? This provision prevents any anthology going into the classroom unless it is clearly designated on its cover that the anthology is for the purposes of the classroom. That is unreasonable. If I decided to compile an anthology of the work of every writer of prose who has emerged in Dublin over the last ten years, from Colm Toibín to Roddy Doyle, unless it is specified on the cover, it may not be used in educational establishments. I do not know how many anthologies will have to be redone or how many parents will have to buy new anthologies because of the new requirement that it must be stipulated on the cover. Will the Minister of State explain paragraphs (a) and (b)?
It is important to maintain the link with the educational establishments but the Deputy's standpoint would allow general publications to be used in a liberal fashion. I referred to the Deputy's amendment, which proposes the deletion of "and is so described in its title", and this is the thinking behind it. What is the Deputy's problem with paragraphs (a) and (b)?
My problem is that I do not understand it. All knowledge, not only copyright, is vested in the Minister of State, and perhaps he could explain it to the committee.
The reference to "consists mainly of material in which no copyright subsists" relates to the point I made earlier that in many anthologies of this nature no copyright exists because the author is dead for more 70 years.
Is it the case that we may only use for the education of our children in 2000 poets who are dead?
No. The provision allows for inclusion. We are trying to allow for cases which involve the work of poets who are dead for more than 70 years and contemporary poets, provided there is also an educational link. The point of the provision is to allow for such a situation.
That is not the case.
The Deputy wants general publications to be allowed in such situations.
I do not understand how it states that. We can at least agree that it states paragraphs (a) and (b) must be present, but paragraph (b) states "consists mainly of material in which no copyright subsists". The Minister is saying that any modern day representation of poets such as John Montague, Seamus Heaney or Deputy Michael Higgins cannot be included. Why is the provision so prescriptive? It beggars belief that we would want to do it.
It states "consists mainly of material in which no copyright subsists". It also allows for the presence of some contemporary writers.
Will the Minister of State quantify "mainly"?
With due respect to him, his officials and the committee, who are we to decide what the curriculum for the children of Ireland shall be for the next few years?
Can we deal with the question the Deputy raised? Is he satisfied with focusing on the content of paragraph (b) or is he concerned with the relationship between paragraphs (a) and (b) in line 20 where it states "and"?
I am taking a holistic approach to the Bill and this section.
When the Deputy raised this matter, I thought he was referring to the relationship between paragraphs (a) and (b).
I want to establish that paragraphs (a) and (b) are connected.
The Deputy is referring to line 20 where it states "and" rather than the content of paragraph (b).
I am trying to point out how restrictive this will be in terms of the education of our children. It is being prescribed to such an extent that we are limiting what may be contained in anthologies to mainly material which is out of copyright. I do not understand that. It is an unreasonable prohibition and I do not understand why the section is included if it will consist mainly of material where no copyright subsists.
This issue is not part of the Deputy's amendment, although I appreciate his widening of the debate in raising the reference to "consists mainly of material in which no copyright subsists". I understand the provision is trying to deal with the point that there must be acceptance and specifics, etc. There is a need to consider the Deputy's point and the relevance of the wording in the section. No copyright subsists regarding the work of authors who are dead for more than 70 years. As somebody who was involved in education, I do not want to introduce restrictive legislation. In this case, we are limiting what is free rather than what is used in anthologies. If an improvement is required in the section, I am more than anxious to consider it.
However, the Deputy has proposed the deletion of "and is so described in its title". I cannot accept the amendment because, as the Deputy will agree, there is a need to link the Bill with education. I also want to ensure the work of modern authors can be used in conjunction with the work of authors whose copyright no longer exists because they are dead for more than 70 years. I do not want to introduce legislation which creates any inhibitions in that regard. The Deputy has raised a new aspect but there is a need to maintain the link and I ask him not to press his amendment.
I am also a little confused but I suspect the confusion is practical and relates to an anthology as opposed to a published anthology. Published anthologies are frequently used in classrooms but we are discussing anthologies which are specifically produced by a college lecturer to illustrate the breadth of English poetry, etc. It would include contemporary poets in addition to dead poets. Is this not the issue we are discussing? The Bill will not govern existing, commercially published anthologies, rather only anthologies which are specially produced in the educational setting. Is that the case?
That is not stated. Does the explanatory memorandum contain a reference to anthology as outlined by Deputy Lenihan? This is an example of where the lack of detail and slightly different format of the explanatory memorandum is creating difficulty for Opposition Members. Usually an explanatory memorandum deals with a Bill section by section. Even if it only contains one line about a section, one at least gets an understanding of its import. I ask Ministers not to use this form of explanatory memorandum for any other Bill in the future. In this instance the explanatory memorandum refers to Chapter 6, sections 48 to 101. There is no detailed section by section explanation which would help us to understand the thinking of the Minister and his officials. All I have to go on is the note which we were very kindly given by the Department, which appears to flag hugely positive changes for education in that the exemptions for schools in the 1963 Act are now being increased. My sense of sections 52 and 53 and the other sections relating to education is that as soon as the legislation is implemented the Minister, Deputy Martin - although he might not still be the Minister for Education and Science - will have to appoint an independent copyright officer to all big schools and to groups of smaller schools to interpret what each school can do in this situation.
The language in section 53 is utterly incomprehensible. It states the provision shall not apply provided "it is intended for use" but then goes on to say it shall not infringe the copyright if "it is not intended for use". Is a book intended for school use? When a book is published, nobody knows what it is intended for. It might be intended for reading in the lavatory. That is an intended use but it does not say on the cover of the book "This is intended for use in people's homes." We all know what books are used for. They might have all sorts of uses. This section is not workable in regard to use in schools.
I know the Minister's intention is to make it possible for our students to have a broad range of works available to them which might not be published by textbook publishers such as Folens. However, what is theraison d’être of this section? Was the Minister lobbied about this? Was it taken from the equivalent UK Act? Otherwise, he might table an amendment to repeal the section.
I am allowing a little flexibility in relation to the discussion of the amendments. However, I would like to focus on the fact we are on amendment No. 49, which was tabled by Deputy Rabbitte. We can discuss the section in its totality when we get to it. It is important to keep on track.
On a point of order, does that include amendment No. 49a?
No, we are discussing amendment No. 49 alone. How stands the amendment?
The Minister importuned me to not break the linkage, as he put it. He said it in a harmless way which implied I am trying to somehow damage educational establishments. I have been trying to argue the opposite for the past couple of hours. However, that is why the Minister's gifts ought to be acknowledged in other areas.
The Deputy does all right himself.
We could all go out to hear the news of what happening elsewhere. I am not trying to do that - I am merely saying that to restrict the education of our children to access to books which have written on the cover, "These are intended for leaving certificate students," is appallingly wrong and cannot be justified.
I have a great many more objections to the section which I find incapable of amending, partly because I do not understand some of it and partly because the explanatory memorandum does not help me. I am reluctant to refer to the note from the Department, to which Deputy Owen referred. I am sure it was sent to me but I never saw it.
I thought I had brought the Deputy back on track in relation to the amendment.
You are doing a very good job, Chairman.
Could we deal with amendment No. 49?
The amendment is important. I agree with the Minister that there should be a section in the Bill dealing with anthologies for educational use. However, I refuse to be persuaded that in order for an anthology to be for educational use it must expressly state on the cover, "This is for educational use". A great new anthology might appear in the firmament this summer and a new Minister for Education and Science might decide it ought be on the curriculum for the autumn, but it would have to have "for educational use" on the cover. This is entirely over-prescriptive. I have rarely seen legislation which is so prescriptive in protecting the rights of one section of the community.
Deputy Rabbitte has made a very good and valid point.
A school could have other anthologies but would have to pay royalties. The Deputy is right and has unearthed a very fundamental point about paragraph (b) where it says "consists mainly of material in which. . . ". That is the purpose of Committee Stage. As someone involved in education, I am concerned that we do not in any way impede the access of pupils and teachers to material. There are 355 sections in the Bill and if we were to provide an explanatory memorandum, I presume we would hardly get in the door with——
Is the Minister serious? He is setting a precedent. We have debated Bills with 355 sections before, where every section was explained. The Minister is trying to suggest we are inventing the wheel here.
No, I am suggesting——
I ask both sides to accept we are not dealing with section 53 in total. We are dealing with amendment No. 49, which we been discussing for over 20 minutes. Can we deal with the issue raised by the Deputy in relation to the reference to the description of title in section 53(1)(a)(i) and then move forward?
It would be better, Chairman, if you allowed the Minister time to reflect on this over lunch. This goes to the heart of the section.
I would be very happy to do that but we must get to section 53 first. If I could be given a decision on amendment No. 49 I could move forward.
I appreciate there are rules and procedures.
I have been flexible and accommodating because of the importance of the Bill, particularly this section.
A fundamental point was made about the wording. The reason for much of this is that this legislation is embedded in the 1963 Act. It is unfortunate that much of the language in that Act must be used in this Bill. The Deputy might say we should tear it up and start again. Unfortunately, if he were in my position he would find - and we have had this before - there are references to TRIPs agreements and Berne conventions. Deputy Rabbitte rightly referred the last time to the relevance of some of this in this modern, hi-tech age.
I appreciate your help, Chairman, in this regard. I am saying I think there is a need to look at what Deputy Rabbitte has raised - although an amendment was not tabled on it - in relation to the need for teachers and pupils to have freedom of access to works which are no longer in copyright and modern works. I am anxious to look at that and at the general language of the section. We can agree that the linkage with education is important. The only possible objective link I can see is for my reference to "and is so described in its title" to remain in the section. However, other very relevant issues have been raised and I will examine them in the context of what has happened here. I will then return on Report Stage. We need to improve that part of the section.
Thank you. We will see if that has been helpful. How stands the amendment?
I do not want to weary my colleagues unduly, but there are a number of questions that have not yet been dealt with and that we will need to come back to.
In light of what the Minister has said, is the amendment being pressed?
The Minister is trying to get to Report Stage and at that point he will worry about what we will do then. One cannot just excise this amendment as if it was not part of the integral discussion we are having. I am saying there are a number of matters that have not yet been thrashed out. I would like to start with the question put by Deputy Conor Lenihan. I do not know what the answer to that is.
To what is the Deputy referring?
Deputy Lenihan suggested that this section excluded normal published anthologies.
It does - commercially published ones.
I indicated a couple of times that I am trying to deal with amendment No. 49. If we do not keep on track we will be dealing with sections and amendments together. May I please ask the Deputy how stands amendment No. 49?
I am still advocating its merits, Chairman.
I wholeheartedly appreciate that and I understand, but you did hear what I said to the Minister of State and you have heard his response. I have to deal with amendment No. 49 which is before me. To move from that amendment, to deal with amendment No. 49a and section 53, I have to ask you, Deputy, how stands the amendment?
In trying to make up my mind on pressing the amendment; I am trying to divine what the Minister of State is likely to do. For example, his colleague has suggested that section 53 does not relate to normal published anthologies, but there is a line in subsection (1) which states "of a published edition which has been lawfully made available to the public in a collection. . . ".
Will the Minister of State clarify this particular issue?
That refers to a typographical arrangement of a published edition.
Deputy Lenihan wanted to come in with an important point.
I am trying to make clear that the section refers to "taking information". Let us take the example of theOxford Anthology of Irish Poetry. The Bill says that material can be taken from that anthology to be included in an anthology for educational use, but there is no restriction in the legislation on a teacher passing the Oxford Anthology of Irish Poetry around the class; it does not have to be stamped “For educational use only”. The restriction is on a college lecturer making up an anthology of his or her own, which contains both living and deceased poets’ material.
Can the Minister of State assist us in moving forward?
One could include poems from anywhere once one has this linkage. That is the point. That is why I am suggesting it is vital that we have this link, and Deputy Rabbitte also wants to ensure that. Otherwise, a commercial anthology would fall into the realm of royalties. That is different.
- Boylan, Andrew.
- D’Arcy, Michael.
- Higgins, Joe (Dublin West).
- Owen Nora.
- Perry, John.
- Rabbitte, Pat.
- Stanton, David.
- Ardagh, Seán.
- Callely, Ivor.
- Carey, Pat.
- Ellis, John.
- Hanafin, Mary.
- Kitt, Tom.
- Lenihan, Conor.
- McGuinness, John.
I move amendment No. 49a:
In page 47, subsection (1), lines 22 and 23, to delete "itself is not intended for use in those establishments" and substitute "in question was not published for use in schools".
The purpose of the amendment is to clarify the intention of the Bill but it is difficult to do this because of the language used. I am concerned at the Minster of State's remarks that much of the content of the Bill was taken from an older Bill. Reference has been made to the use of archaic language, but if neither we nor solicitors can understand it, how is the public to be expected to understand? Even if it takes time, we should use language in Bills that the ordinary man in the street understands.
The purpose of the amendment is to substitute the words "published" for "intended". Intention is subjective, it is in the mind of a person. How is it possible to read a person's mind? By contrast, the use of the word "published" in this context makes more sense.
It would have been useful if the explanatory memorandum provided details on the sections in ordinary English that could be clearly followed. Solicitors tell me there is "law law and copyright law", so I understand the difficulties people are having with the language used in the Bill.
I support Deputy Stanton's view. The intention of page 47, lines 22 and 23, is to protect somebody who prepares a sub-anthology or excepts from other works and turns them into a patent or anthology. My fear is that much legal argument could centre on a claim by somebody that he has not infringed copyright while another claims he has infringed it by extracting parts of the work and including it in an anthology for educational use, even with a proviso that while published it was never intended for such use. Something that is not already published and does not have a proviso in its title that it is not intended for school use could be used in an educational establishment.
For the sake of clarity it would be better if a provision was included to the effect that the original work was not published for use, even though it may eventually become intended for use in a school. Given that subsection (1) refers to "published edition", why not repeat the word "published" in paragraph (b)? Why has the word "intended" been used at line 23?
Section 53(1)(a) refers to educational establishments rather than schools. This is a more inclusive term and to maintain consistency in the text of the Bill it is more appropriate than the proposal in the amendment. Page 26 defines "educational establishment" as "(a) any school, and (b) any other educational establishment prescribed by the Minister under section 54;”.
We accept that. The two crucial words are "published" and "intended".
There is not much difference between the word "use" and "published" in this context.
No, the words are "published" and "intended".
The intention would relate to the words described in the title.
We have been told privately that the words "so described" in the title is for the new sub-anthology for the man or woman writing it. Here we are concerned with the original work from which the extracts were taken. Page 47, lines 22 and 23, refer to the first work out of which the second work was spawned. The Minister must be careful that he understands what we are trying to achieve here.
We were focusing in on the use of the word "intended" as opposed to "published". Can we deal with the issue of using "intended" versus "published"?
Earlier the Bill used the word "published" about the same work.
The Deputy wished to remove the word "intended"——
yes, "where the work itself was not published for use in those establishments".
I think I could agree to that.
We will amend our amendment.
The Deputy's wording is more specific.
What is the agreed wording?
I propose our amendment should read "in question was not published for use in those establishments." Therefore, instead of the words "in schools", it would read "in those establishments".
I would be happy to discuss this with the Deputy. If we used the words "intended or published", for example, would that meet Deputy Owen's approval?
No, because "intended" is a peculiar word. It is one which necessitates getting inside somebody's thoughts to find out did they really intend to do something. It is a subjective word.
I would be happy to discuss it with the Deputy or perhaps she will put forward a proposal on Report Stage. I agree with the broad thrust of her argument.
I will table a proper wording later.
What is meant by subsection (2)?
The Department considered increasing the number of works by any one author from two to five in any given five year period under subsection (2) but eventually decided that the provision should remain as it was in the Copyright Act, 1963. It comes back to the question of exceptions being given to educational bodies and complying with the Berne three step test.
The Minister obviously considered increasing the number of works. Why did the Minister not increase it?
I presume the advice was to leave it as it was, which would comply with the Berne three step test.
If a different publisher is involved, does it change matters?
In five consecutive years.
The Bill refers to "the same publisher".
The answer is yes, it could.
Does that mean one could merrily copy two excerpts provided the work was published by a different publisher?
If there were different publishers of the work, could an author have four excerpts from his or her works involved in this collection?
Could one take it from the Gill & MacMillan's edition, the Folen's edition and another edition?
The advice is that it could apply in that situation. The publishers' rights and the author's rights must be protected.
Could that mean two excerpts from one work, that is, no more than two quotes, for example, from one work?
It is works by the same author - plural.
Does that mean that two excerpts from distinctive works would be allowed, that where an author has five works, there could be ten excerpts?
That is the way I would look at it.
What is the definition of excerpts? Is there a limit? Is it part of a poem, a full poem or half the book?
Does it mean two poems from a collection of poems or——
The word "excerpts" does not mean the whole work?
——is it excerpts from a poem?
It could be the whole works, a passage or a short poem, that would be my understanding.
Has the Minister had consultations?
That deals with "excerpts".
I take the word "excerpts" to mean "a portion of". The question Deputy Higgins asked is a valid one. If there is a book containing 15 poems by Tennyson, is one entitled to take two excerpts from each of the 15 poems and publish them in an anthology? Because the plural of the word "work" is used in the Bill where it states "from works by the same author", it implies one may do exactly that. As has been said previously, every syllable we utter here could end up in the hands of an eminent lawyer who would be trying to interpret what it means.
My advice is that it would be two excerpts from any of the 15 works.
Does it mean from any individual work? That needs to be made clear. Heaney won a prize for the reworking ofBeowulf in a modern idiom. Presumably there is a copyright on the modern version by Heaney despite the fact that Beowulf is 1,000 years old. Why should it be restricted to just two excerpts from such a lengthy work when that would not be sufficient to illustrate points which one wished to make? It would be adequate to use just two excerpts if it was a sonnet but not with such a long work.
Paradise Lost is a lengthy piece, for example.
To takeThe Spirit of the Nation, for instance, would it be two excerpts from one speech or two excerpts from the book? Which is the work?
Obviously we are trying to introduce exceptions to allow people to use work without having to pay royalties. This is the exception, Deputy Higgins, but if they wanted to use the entire book I presume it would involve royalties. This provision is designed to allow for excerpts to be used in those cases without the need to pay royalties.
Is the Minister of State indicating that one could use 15 to 20 lines fromBeowulf without paying royalties?
Section 53(1) refers to the "inclusion of a short passage". Will Deputy Owen inform what should be the length a short passage should be?
I am. A short passage in a sonnet would be one or two lines but a short passage in——
Will the Minister of State clarify what constitutes an excerpt?
A "short passage" is referred to at the beginning of section 53(1). Reference is made to "excerpts in section 53(2) and (3). It would be a matter for the courts to adjudicate on this matter at the end of the day.
Subsection (4) reads:
References in this section to the use of a work in an educational establishment shall be construed as references to any use of that work for the educational purposes of that establishment.
What does that mean?
It means works used for teaching or educational purposes.
——and for raising money?
Is that what the Minister of State is attempting in the subsection?
I presume it is to ensure that it is not used to raise money but for teaching or educational purposes.
It appears that the draftsperson who wrote the subsection was asked to cover some point by wording it in that way. Is the Minister of State in a position to give an example of where it might be used for some other purpose in an educational establishment?
I do not want to labour the point but Members on this side of the House are entitled to consult the explanatory memorandum to see what is the intent behind subsection (4). It may be that it was cogged from the 1963 Act and merely reflects the language used at that time. However, as Deputy Owen points out, it is probable the draftsman was asked to provide for a certain situation when formulating what is a rather clumsy expression.
I accept the Deputy's point and I know it is very difficult to deal with all aspects of legislation when in Opposition. One of the problems with this legislation is that much of it dates back to 1963. The reference in subsection (4) to the "educational purposes" of an "educational establishment" clearly relates and is connected to subsection 53(1)(a) which refers to "a collection that is intended for use in educational establishments".
With what other matters would an educational establishment be involved?
It could be used vicariously by individuals in an establishment without being for the educational purposes of that establishment. Its inclusion in the Bill would imply a sort of bona fide usage. That phrase is included in order to cover bona fide as opposed to illicit usage.
Section 53(1) refers to a "short passage from a literary, dramatic or musical work". Subsection (4) is designed to prevent someone, a teacher in a school or university, removing extracts from printed works in order to make an anthology. However, that person could take such material, which they ostensibly gathered for educational purposes in the establishment in which they were employed, emigrate and publish it in an anthology. If that is the case, I do not believe subsection (4) goes far enough in stating that such extracts must be used "for educational purposes" because the material could primarily be used for educational purposes and subsequently for other purposes. If the Minister of State is trying to prevent such subsequent usage, he should make his intention explicit.
Journalists have been given the right to use their material in other media. Is subsection (4) aimed at preventing people from using material, originally obtained for the educational purposes of an establishment, in some other forum when they have left that establishment?
The subsection is designed to ensure that use of such material is confined to the educational purposes of an establishment and it is self-explanatory. One possible reason for inclusion of the subsection is to ensure that such material would not be used for fund-raising purposes.
Let us suppose such material was used in a school play to which an admission fee of £5 was charged. Would problems over royalties arise at that stage?
No, because it would be used for educational purposes.
That would depend on what the money is being raised for. It might be raised for use in Uganda or some other country.
Yes, problems could arise if there are people other than teachers and pupils involved in producing a school play. In that case there would be royalty considerations.
So there would be royalties if an anthology produced by a teacher——
That would have been produced for the educational purposes of a particular educational establishment.
This is aimed more at the literary side of things.
I accept that. However, someone could claim that there was no infringement until the play was written and that one only occurred when professional singers or actors were brought in and some of the lines from the anthology were used in the play. I accept that my argument is somewhat far-fetched but I thought that was the reasoning behind subsection (4). Perhaps the section dealing with charities might cover the example to which I referred.
If it is used for educational purposes, it is acceptable. The issue of performing, playing or showing works is covered in section 54.
This section deals with performing a play or showing a work, presumably in a school context, which we have all had to attend.
Hopefully Claremorris saw the Deputy participate.
I heard Deputy Rabbitte say once that he regretted he was not great at singing but I am sure he performed in some capacity in the school play.
The copyright has long expired, it was a long time ago. When Deputy Boylan hears this it will really give him blood pressure. Section 54(3) states that "For the purposes of this section, a person is not directly connected with the activities of an educational establishment by reason only that he or she is a parent. . . . ". I am again at a loss to understand what is the necessity for this section. I refrained from putting down an amendment because I presumed there was an evident explanation which escaped me. Why are we going to great lengths to make it clear that because merely by virtue of one being a parent attending a performance, one is excluded?
I expected Deputy Rabbitte to raise this and I would have done the same in his shoes. This is where the exceptions provision of the Berne Convention again comes into play. The Berne Convention permits certain free use of works and one such use relates specifically to teaching. The three step test of the convention is that the exception must be specific and limited, it must not interfere with the normal exploitation of work and it must not prejudice the legitimate interest of the copyrights owner. This provision has been in place since 1963 and Deputy Rabbitte was a Minister at a time when it prevailed. I do not know the outcome of the discussions but the Deputy referred to efforts being made by the committee and the Minister for Education and Science to try to deal with the area of collecting agencies and schools. That is the right approach - agreement should be reached to deal with these legalistic situations with which, as a lay person I am not happy. This provision is similar to the 1963 legislation and is there because there are international obligations which give the Minister of the day no options in this area. That is why it is included. I would have expected the Deputy to raise this issue. If I were to argue the legal case - the Deputy may notice that I am not arguing it very convincingly - which is based on international law, the use for performances and concerts is fine when they occur in an educational environment of teachers and pupils. However, that changes when parents and guardians are allowed in, there is a charge at the door and a performance continues for some time. That would be the legal option available to people if this provision were not included.
The measure is based on the circumstances which apply at present. As I have said and will say about some elements of the Bill, this was the position for a long time and I am doing no more than honouring the legal restrictions placed on the Minister. There is a responsibility on the Ministers for Education and Science, Enterprise, Trade and Employment and others to try to resolve this. I understand that following discussions between the former Minister, Niamh Bhreathnach, and others, the issue was not resolved or finally bedded down. There is potential to finalise those discussions and they would take place between the Minister and the collecting agencies. It needs to be resolved by agreement for the lay person.
It is not good enough for the Minister of State to pass the buck for resolving the situation and to leave educational institutions to the tender mercies of the collecting agencies. Despite what he said about the Berne Convention, he could at least have included provisions - there are enough restrictive provisions in other sections - to narrow various applications. If the educational establishment was a university with thousands of students and parents attending an extended run of some new work, one could see an abuse occurring if royalties were not paid to the author. On the other hand, a small school could hold a restricted performance of a work. It might be something students studied for their junior or leaving certificate and they decided to hold a private performance of it for their parents, for which they could be subject to fees. Why can the Minister of State not include a provision to cover such an event as opposed to a large public performance for which it might be legitimate to seek royalties?
This is obviously a thorny issue and it is not resolved. This section clearly only exempts the showing of literary, dramatic or musical works before an audience in which teachers or pupils are in attendance. If the Malahide community school decides to perform "Fiddler on the Roof" as its annual show, it must seek the copyright for it - that has been the case for many years. There is still an argument where the proceeds go to the school.
Regarding section 54(4), the Minister of State in a roundabout way criticised Deputy Stanton and myself for changing the term "educational establishments" to "schools" in amendment 49a. He said that the term included places other than schools. Why then in section 54(4) is the term “other than schools” included? Why is it included if the term “educational establishments” in the Minister of State’s interpretation means more than schools? Why also does it say “for the purposes of this Act”? Is it not just for the purposes of either this section or previous sections relating to education? It seems the Minister of State has the power to implement any other sections relevant to educational establishments. Why is the phrase included? The wording states “for the purposes of this Act”, which means the whole Bill as opposed to those sections relating to education. This may be just a technicality and the way the draftsmen word it.
I referred to this earlier. The definition of "educational establishment" is any school and any other educational establishment prescribed by the Minister under section 54. The Deputy is correct. It is fundamental to the Bill and it is technical in that it is precisely referred to in the definition. Obviously "educational establishment" would cover colleges and universities other than schools. The wording is included for clarification purposes and is linked to the definitions.
The word "school" does not appear. It is always referred to as "educational establishment". Why did the phrase "other than schools" have to be included? Schools are educational establishments.
We have been talking about schools in this case so far.
When we moved our amendments, the Minister of State and his officials stated that we had limited the wording too much by saying "for use in schools". We said we would resubmit it as "for use in educational establishments". Why does section 54(4) not say "specify by order establishments to be educational establishments for the purposes of this Act"?
It is a point of detail and I accept it. The Deputy is saying that because I had a problem with her narrowing the application of measures to schools, we should apply the same rules to ourselves.
There is probably a reason. The Minister of State can tell me later.
There may be a reason for including it, but if the section can be sustained legally without it, I have no problem with that.
Perhaps the Minister will take supplementaries on the same issue.
Regarding the school Christmas musical or pantomime which would be advertised on the school notice-board and for which subscriptions would be voluntary and the proceeds of which would go to a well known Third World charity, for example, are royalties payable on such productions which are educational in their own right?
Who does the Minister of State have in mind when, in section 54(1)(b), he states "at the establishment by any person for the purposes of instruction"? Would that include supervisors and classroom assistants?
The Minister has tended to say that this is the way it always was and that he is going along with it. I do not wish to make a contentious point of it in so far as he is directing it at me or my colleagues——
My hands are tied internationally.
This is the way it was. When I was there this legislation was in gestation and therefore the opportunity presented itself in the Bill to change things if we think they ought to be changed or if they can be changed in a way consistent with our international obligations. I find it very difficult - the Minister of State will have to tell me what section of the Berne Convention is involved so I can examine it before Report Stage - to accept any convention that says the situation posited by Deputy Boylan ought to be an appropriate occasion for collection agencies to assert their rights. Even the let-out that Deputy Higgins suggested is not valid because section 54(1) seems to refer to teachers or pupils. I do not think the large university setting Deputy Higgins thought might give some justification is contemplated by that, as university students are not referred to as pupils normally. Therefore this is a typical situation as envisaged by Deputy Boylan. That first subsection states: "or other persons directly connected with the activities of that establishment". It must be the janitor or the plumber or someone that is in mind.
Subsection (3) goes out of its way to say that if the parents turn up, the lads may assert their rights to royalties. I find that very difficult to accept. I mentioned in the last debate the incidents to which the Minister of State has now referred where this came up. I do not have the papers with me, but presumably one can examine what happened on that occasion. My memory of it is that I was advised that the collection agencies were entitled to assert their rights to intrude into the school play but I did not take that advice. I counselled publicly, in the Chamber, to the contrary. My memory is that subsequently there was a meeting between me and the agency concerned and it agreed it was an unreasonable assertion of its rights. We had a gentleman's understanding that it would not happen again. Nonetheless, we are putting back into the legislation the permission to assert it. If, as in Deputy Owen's example, there is a particularly professional performance I could concede the point. There may be some justification there, however, in the average school play where, as Deputy Boylan said, the money goes to the Society of St. Vincent de Paul or the East Timorese people, there must be some balance and this is going too far.
Are free performances, where there is no charge, covered in the Berne Convention?
My understanding is that whether there is a charge, the same applies. It is important to state that during discussions on this subject in 1996, this issue was raised by the Department of Education and the Catholic Primary School Managers Association was raised. The Department of Enterprise, Trade and Employment sought the views of the Attorney General's office as to the constitutionality - which we have not dealt with yet as we are dealing with property rights of the matter - of extending the provision beyond the terms of section 53 of the Copyright Act, 1963. That is what we are talking about here. The Attorney General was also asked to comment on how this would affect our international obligations under the Berne Convention and I have referred already to the three step test.
The Attorney General replied that it was more probable than not that any extension of the proposed exception would fly in the face of a delicately balanced international regime of copyright protection to which Ireland subscribes, to the advantage of many Irish authors and composers. In addition, the Attorney General pointed out that it seems likely that any extension of this exception would involve "an unwarranted invasion of the property rights of composers and would be found in breach of the Constitution." That is the legal background and the advice given. My understanding of what happened - Deputy Rabbitte was involved——
My memory is quite imperfect. My memory is that the Minister of State or Deputy Martin raised this matter with me by way of Adjournment debate at the time.
It would have been Deputy Martin as it was not me; this was not one of my responsibilities at the time, I was spokesman on labour affairs. Obviously we are here to solve problems and there is a very serious legal restriction for legislators. I wish to address this, but it will have to be done in co-operation with the Minister for Education and Science and the music rights collection agencies. We should try to sit down with the parties involved and address this. I am clear that while Deputy Rabbitte rightly raised it, no effort was made by anyone in that Government to address the matter in legislation. I am not——
It is coming up in this Bill.
I am making it clear that if the Deputy wanted to do this and was the Minister now, the same advice would be given as was given then. I am not in the business of saying: "You didn't do it when you were there." That is not my point. My point is that the legal advice from the Attorney General on the constitutional position was the same then as it is now. I am not suggesting it is satisfactory; I accept that. There are all sorts of restrictions on us, and I will come back to Deputy Higgins's point, but that does not mean we should not try to get around those by dialogue. Some efforts were made by the then Minister for Education which did not reach finality, but I want the parties involved to renew their efforts in conjunction with this legislation, which clearly, on the face of it, seems very unfair regarding parents in particular. However, that is the legislation and the background to my position. I assure Deputies that I will make every effort to involve myself in resolving the matter along the lines suggested by the committee. I share the committee's concerns on the matter.
With respect, this is the forum in which it should have been addressed or an effort made——
The Minister of State was asked which section of the Berne Convention was involved. I have it here, what section is it?
I have read it out.
What section is it?
Article 9(2) which states: "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases provided that such reproduction shall not conflict with the normal exploitation of the works and does not unreasonably prejudice the legitimate interest of the author." That article relates to rights or reproduction and possible exceptions.
Is the Minister of State saying that the interpretation of his Department of this is that putting on a school play for pupils' relations is exploitation?
It is the way the Deputy says it. When it is presented like that it sounds totally unreasonable, but one opens a production to an audience outside the classroom. Deputy Stanton asked about supervision and assistants, but my advice is that the section which refers to a person for the purpose of instruction would include those types of individuals.
Maybe the porter.
When it comes to interpretation of the article the Minister of State has read, it is an overly severe interpretation.
I am not finished answering the question. Article 10 of the 1996 WIPO Treaty, which expands on this issue, deals with limitations and exceptions and states that contracting parties may, in their national legislation, provide for limitations of, or exceptions to, the rights granted to authors of literary and artistic works in certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. It also states that contracting parties shall, when applying the Berne Convention, confine any limitations of, or exceptions to, rights provided for therein, to certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
If that is the totality of what governs this situation, the interpretation in the Bill goes well beyond what is demanded by that cited by the Minister of State. It is very restrictive and is not an interpretation.
I am simply saying that the Attorney General's advice was the same in 1996 when this issue was raised, presumably concerning that section. This section is part of the 1963 legislation. That being the case, and this being the advice——
I understand this as well as the Attorney General, and if what the Minister of State has read governs the general principles, the Bill is far more restrictive than is demanded. The WIPO Treaty is quite general and it could be cogently argued that in the case of educational establishments, particularly schools, performances could take place without falling foul of what the Minister of State cited from the Berne Convention and the 1996 treaty.
Could the Minister of State not overcome this difficulty by excluding amateur school productions which take place within school buildings for educational purposes? Such productions instil confidence in young people and so on and are distinct from those where a school engages in a more professional production and goes on school tours or on tour generally. This would overcome many of the difficulties.
I examined this issue and asked for specific legal advice concerning exclusions, particularly in view of the fact that ordinary people will find this difficult to understand. Copyright is a property right. Having considered all the advice regarding the Berne Convention, the WIPO Treaty and the Constitution, which I can share with Members, these issues would be better resolved by agreement. As Minister of State, I am restricted legislatively in trying to deal with this issue. I would like to deal with it in law but that option is not available. I am convinced the matter should not be left untouched in the future. This is not necessarily an Irish solution to an Irish problem but an international problem of dealing with property rights, and that is what copyright is. The last Government made some efforts in this regard but did not get to the end line. We should try to do so.
What does that mean? Does it mean the Minister of State will introduce an amendment or try to find a solution outside this legislation?
Does it mean he will deal with it in subsequent legislation? What does all that commitment mean?
It means that the Government of the day - this would involve the Minister for Education and Science more than my Department——
He will be confined by this legislation.
The Deputy's former ministerial colleague, Niamh Bhreathnach, tried to resolve this issue but did not finalise it.
This is the time to do it.
She would have received the same advice. Other people were around - Deputy Rabbitte also knows about this - who would have said, "We should do A, B and C". People made statements on this issue at the time and met organisations, and gentlemen's agreements were made.
My clear understanding was that the collection agency concerned had bigger fish to fry and accepted that it would not seek to assert its rights to this in the future. On that basis we called it off because it was not going to happen again. This Bill provides the opportunity to change the law and it has only now emerged.
The Deputy is right and we are getting to the net point. There is a principle in the Bill with regard to national and international legislation and now we get into the area of education. Public representatives are saying - I would do the same myself - "Hold on a second, Minister, this shows that the law is an ass". My understanding was that Ministers of the time raised this issue with the organisation in question and understood the law. I accept that the Bill was not in place at the time and, perhaps, the Minister of the day thought that legislation could be put in place to deal with all this. The truth is that that was not possible. However, the Minister of the day would have been advised that the best approach was to get a gentlemen's agreement. The Deputy rightly said that all IMRO probably wanted then, as now, was no more than to have the principle upheld throughout the legislation. One needs to be careful about gentlemen's agreements and I accept that one should deal with this by way of legislation if possible.
One would want to be sure of whom one was dealing with.
Yes, and I am always wary of these situations. I have heard suggestions that IMRO would like this situation maintained and might even involve itself in supporting cultural or artistic activities in schools. That is like giving an incentive to schools to agree to this and the issue has to be resolved. The approach of the then Government was correct in trying to get an agreement. I would have to see the details of the Deputy's suggestion that IMRO would back off and not get involved in this area.
With respect, the Minister of State is giving IMRO positive rights to get involved. He is not leaving thestatus quo as agreed in 1996 when everyone said, “You are all lovely gentlemen and we will sort this out”. No matter how many times I read Articles 9 and 10 I agree with Deputy Higgins that the Minister of State has interpreted them in the most strict manner possible. He could say that such reproductions conflict with normal exploitation but that it would be stretching it to suggest that a five day run of “Big Maggie” or whatever in a school hall in Blanchardstown, Malahide, Skerries or Midleton is exploiting the rights. On the contrary, such performances will probably encourage more people to go and see “Big Maggie” when they become adults and thus help the production.
Let me clarify the point. This is exactly the same. We are leaving the position as——
With respect, the Minster of State has no right to leave it as it is because the problem has arisen that the interpretation was causing——
My hands are tied. The 1963 Act is in place and I cannot leave a blank when it comes to the section dealing with this issue.
The Minister of State could stipulate that a performance does not constitute a public performance where it——
I have given my views as to how this should be dealt with, which are similar to those tried before. However, we should try to nail this down as best we can on this occasion. That would have to be through agreement and dialogue.
How will the Minister of State nail this down? Agreement and dialogue are not good enough in the face of this modern law. That may have been more feasible in the context of old legislation but we are proactively doing something.
On the contrary. Deputy Rabbitte will be aware that I tried to look at the legislation in relation to Sunday work. We ended up with a code of practice to which the unions and employers agreed. This is a parallel situation where one can get agreement by way of this process.
Why does the Minister give the cudgel to one side in the legislation?
It is there already.
The Minister is introducing new legislation while he can amend what is undesirable in existing legislation.
Yes, he can.
The Attorney General's advice is that if I try to change or extend the legislation I am in breach of the Berne Convention. I am sorry if I am not making myself clear but time and again the Berne Convention is referred to. I would like to do something about this in law. I am asking the Deputy to accept that the infamous Berne Convention exists. I have quoted from it and the Attorney General's advice is that this is as far as one can go. It was the same in 1996 as it is now. Obviously that advice was sought in the context not just of the issue of schools at the time, but in the long-term preparation for this Bill which has been in gestation for some time. My advice is that any change from the situation that pertains at present, as it did in 1996, would be unconstitutional.
I cannot let this point go unchallenged. Whenever I raise with the Taoiseach the question of the outrageous speculation in relation to building land, the Constitution is constantly waved in front of me. Judge Kenny, a distinguished judge in the early seventies, had a completely different interpretation which was never tested in the courts. Legal people in the courts interpret the law while lawmakers and elected representatives are supposed to make the law. The Minister of State has the opportunity of making the law which they then must follow, rather than restrict himself and qualify what he does on foot of legal advice. He is in the process of making laws so why should he allow a possible interpretation to restrict him? If someone wishes to take issue with this in the future, they have recourse to the courts, based on what is included in the legislation. The Minister is already restricting himself and in so doing he is giving the cudgels to one side when he says that people can have a gentleman's or ladies' agreement. The Minister of State is arming one side with the law and the other side is beholden to that side. He is basing his decision on a possible interpretation rather than legislating boldly for a particular situation.
Do other members wish to contribute? I am conscious that we have spent more than 35 minutes on this. I am happy to allow as much time as necessary but I hope members appreciate that I want to try to deal with as many sections of the Bill as possible. I am prepared to sit here for as long as members wish. On the last occasion we said we would run all the way through.
I will go along with what the committee agrees, but the last day we said we would run all the way through until 5 o'clock. I am trying to deal with as many sections as possible as long as members are prepared to sit it out. I do not want members to think that they can tease this out and then run away at the close of the section. I am anxious to make real progress. I will accommodate any members who wish to contribute provided we try to cover as much of the Bill as possible today.
On a point of order, I understand the Chairman's anxiety, but he is misdirecting himself about the decision made. We made a decision and it was confirmed to us in writing that the committee would rise at 3 o'clock. I was grateful for that for the reasons I explained the last day. With respect, I believe the chairman is confusing this with another meeting. We made that decision; it is in the notice.
I received the notice and I indicated that I would accommodate the Deputy because I know he has a problem today. I do not have a problem adjourning when we have dealt with the appropriate section. It was agreed before we broke for lunch that we would come back until approximately 3 o'clock. However, I would like to make a little more progress than just one section. We have spent 40 minutes discussing section 54 and I am anxious to put the section to the committee. I am happy to allow members who wish to contribute to do so, once the committee will bear with me and allow me to conclude as many sections as we can.
What exactly is the Chairman saying? I do not agree with that. The committee decided to rise at 3 o'clock. That is a matter of fact.
Why are many members still continuing to contribute since it is after 3 o'clock? Is the Deputy saying he wishes to adjourn now?
That is what was decided.
It is now 3.06 p.m.
There is no point in our making a decision when you will run it through for 45 minutes as happened at lunch time.
It is now 3.06 p.m. and there are three members wishing to contribute. I call Deputy Boylan.
If we adjourn, perhaps before we return the Minister of State will take a fresh look at this issue because it is a major problem. We are talking about a gentleman's agreement instead of statutory legislation. This is not satisfactory. Given the presentation by IMRO, I would not like to draw up a gentleman's agreement with it.
I am concerned about two matters. First, I am concerned about schools which may break the law if they believe that a gentleman's agreement is in place? My understanding is that technically they will be breaking the law unless they have a waiver of copyright in writing. Had the Minister of State discussions with any of the copyright licensing agencies in order to agree to a waiver of copyright for schools? A gentleman's agreement means nothing unless it is in writing. On a wider issue, it is important from an educational and self-esteem point of view for five and six year old children in particular to have their parents attend a show, even a once-off show, in the evening. The subsection precludes this unless a waiver of copyright is in place. I have not heard the Minister of State say that he has drawn up a written agreement with the licensing agencies to give a waiver on these issues in the case of primary and secondary level schools for limited performances for parents only. That would go some way towards alleviating all our concerns.
I agree with Deputy Stanton. If IMRO is involved, a waiver will be very important. Given that there has been such a massive volume of legislation since 1963, I am surprised the problem cannot be solved. Many aspects of the 1963 legislation has been changed so I cannot understand the bottleneck around this section, regardless of the Berne Convention. As Deputy Higgins correctly stated, there is room for wide interpretation here which could give a derogation to schools in particular. The enactment of the Bill will allow licensed collection agencies such as IMRO to be more actively involved. Perhaps it will be prohibitive for schools to become involved in concerts. I know from being involved in business that people are paid 10% of the collection fee of IMRO. How will this be regulated? These people could demand a payment of £200 from schools. This is often their pay packet.
On a logistical issue, we do not have a private session, but we will have to look at how we can go through the business within the allotted time. This is my concern as Government Whip. I am not trying to restrict the debate but we need to organise ourselves so that we can get through the business within the timeframe set out by the committee. This applies to the Minister as well as the Opposition.
I am entirely disbelieving what I am hearing. Has anybody here attended a Committee Stage of a Bill before? Where are we getting these arbitrary time limits? This is preposterous.
We have not fixed a section at which to finish by a certain time.
Some are offering contributions while others are indicating that time is pushing on. I am trying to take on board what the committee agreed before breaking for lunch. I indicated that there should be flexibility on the 3 p.m. deadline.
A time limit should not have been placed on the committee in that case.
What was the point in agreeing to rise at 3 p.m., then continuing after that?
That is my point. We agreed to rise at 3 p.m. We have had a 45 minute debate on one section and I would like to finish it before we rise.
The chairman can do that but he does not necessarily have to.
I am entitled to conclude this section under Standing Orders.
The chairman is not, he must be joking.
With all due respect, the chairman is not entitled to do that. The notice we received did not say that if section 53 was not concluded by 3 p.m. it would be concluded by a vote put by the Minister. That is called a guillotine and there is no guillotine in this committee. We should have risen at 3 p.m. regardless of what we were discussing. We have reached a point where we will gain nothing by continuing. We are getting fractious.
The Minister might want a break.
We made good progress the last day we met. My experience in the Seanad is that there are sections and subsections in this Bill which will require some time. This is one such section but we will not be held up at every point. I accept the point Deputy Rabbitte made the last time I was here when he raised the issue of time restrictions. As Minister I have no problem, it is up to the committee.
My approach concerning the issue of IMRO was to inform the committee of the legal situation regarding property rights, and I have done that. Clearly, I will ask the committee to support the Bill as I have outlined it. There are no amendments here because this warrants debating rather than amending. It would tax all of us to table amendments in this area. People have mentioned exemptions but I have no legal room to move. Deputy Stanton asked me why I did not nail this down with IMRO. As far as I am concerned, the law must be honoured but other Ministers, such as the Minister for Education and Science, and I will deal with the situation through dialogue with IMRO. I will keep Deputies informed of the situation.
We will have a productive break.
In light of what the Minister of State has said, I propose that our next meeting to discuss the Bill should take place on Wednesday, 2 February at 2 p.m.