Section 54 was discussed at length at the last meeting.
Copyright and Related Rights Bill, 1999 [Seanad]: Committee Stage (Resumed).
This issue required much discussion on the last occasion and I have some progress to report. As members will recall, section 54 refers to school concerts. I said at the last meeting that I would ask my officials to contact IMRO on this matter and I did so. IMRO has made it clear that it has no interest whatsoever in pursuing schools for royalties in respect of ordinary school concerts, musical dramas, nativity plays and similar events. Members understandably expressed concerns about this matter at the last meeting, but this will apply even where such events might be attended by parents and friends of the school.
IMRO has two understandable concerns on legal grounds. The first is that the principle of the application of copyright law to public performances of music, which is guaranteed by international law, is maintained. The second is that no loophole should be allowed to exist where events mainly geared to commercial or fund raising purposes should be allowed an exemption from copyright law under this exception, however improbable such a possibility might appear. While it is too early to predict an exact outcome, IMRO has specifically assured me of its willingness to enter into an understanding with me and the Minister for Education and Science aimed at removing once and for all what we all agree is an unnecessarily contentious issue from the debate on copyright.
Since it appears probable that this difficulty can be solved on an extra-legislative basis without any need for the legislation to depart from international copyright norms regarding public performances of music, I propose the committee agrees to section 54. I assure members that I will pursue this matter between now and Report Stage by which time I hope the position will be crystal clear. I will also keep any agreement or understanding reached under review, even following the enactment of the Bill, to ensure that it works properly and that it is adjusted should it prove necessary.
The letter from IMRO, dated 1 February 2000, states under the heading "Performance of Copyright Music in Schools":
This organisation is perfectly willing to refrain from seeking royalties in respect of the public performance of copyright music controlled by us where such performances take place by children at school concerts, nativity plays and the like. In fact, there are many activities in this area involving music where IMRO is anxious to promote an interest in its composition, performance, education and training. We have previously indicated our willingness to set aside certain funding towards this end. [Deputy Rabbitte referred to his involvement in this issue in the past.] Obviously we could not contemplate the free use of copyright music where such use conflicted with the normal exploitation of unreasonably prejudiced legitimate interests of the authors and was not confined to special cases, that is, the three step test.
We would like to assure you of this organisation's willingness to enter into an understanding with your Department and/or the Department of Education to remove once and for all this unnecessarily contentious issue from the debate on copyright.
The letter is signed on behalf of Irish Music Rights Organisation Limited by Mr. Adrian Gaffney, the chief executive.
This matter was thoroughly discussed during the debate on section 54 at the last meeting. I gave a commitment that I would try to make some progress on it and this is what has been achieved in the meantime.
I welcome the Minister's statement. In all the circumstances, it is sensible and represents progress. As he said, it takes an unnecessarily contentious area out of the Bill. I thank the Minister for negotiating that arrangement. I note why the music rights organisation wants the legislation to continue to assert its legal entitlement and I presume the Minister will put on record the proposals he will devise with the Minister for Education and Science and IMRO to ensure the situation which arose a few years ago does not arise again.
I welcome the developments. It shows that the committee's lengthy debate on the issue at the last meeting was worthwhile because it brought about a proposed solution to the major issue involved. I congratulate the Minister and IMRO. I understand other licensing agencies which may have an interest in royalties and copyright are also involved. Has the Minister considered holding discussions with them? Are others involved?
I welcome that the Minister took the opportunity since the last meeting to get this information. I do not wish to be churlish but, given that the issue was so controversial, he could have forestalled much of the debate last week by checking out the matter. I do not agree with the Minister's defence last week regarding the advice of the Attorney General. His advice was that it would be unconstitutional to start changing the rules in the middle of the enforcement of an Act. This is the time to make changes.
In the context of Report Stage, it is essential that there is no equivocation on this matter. The Minister mentioned nativity plays and musicals and that there would not be a problem if parents attended. There will be arguments about whether it ceases to be a nativity play or an event for parents if a well known singer is involved. This would widen the event's appeal and make it more popular. There must be clarity for schools so they know what they are allowed to put on without the need to pay a copyright levy. The matter cannot be fudged. I suggest the Minister contacts IMRO to ensure it is not holding in reserve arguments such as it did not know famous singers such as The Three Tenors or Rebecca Storm would be in a school play, etc. We and schools need to know whether there is any equivocation.
I thank the Deputies for their responses. Deputy Stanton asked if other groups need to be consulted. The answer is yes and that will be done. I acknowledge the efforts of Deputy Rabbitte and others to deal with this matter. I am also trying to deal with it outside or around the law. I will not rehash last week's debate. The Copyright Bill is complex and detailed and occasionally we get caught up debating technical issues. I do not take pleasure from that and I accept the Minister of the day is inclined to defend indefensible positions on legal and technical grounds.
However, I used the strength of the views of the committee in the discussions on this matter. IMRO is aware of our deliberations and, as Deputy Stanton said, it is healthy that a Minister can use the cross-party backing of a committee to deal with an issue head on. We had to go around the law but we must nail down as much of this matter as possible. As members, some of whom are former Ministers, are aware, that will not be easy. However, I will return to Deputy Rabbitte and others and make it as clear as possible. That is now on the record and the Deputy will be hearing from me.
I move amendment No. 49b:
In page 28, lines 15 to 20, to delete subsection (1) and substitute the following:
"(1) Fixations of broadcasts or cable programmes or copies of such fixations may be made by or on behalf of an educational establishment for the educational purposes of that establishment without infringing the copyright in the broadcasts or cable programmes, or in any work included in the broadcasts or cable programmes.".
This amendment arises because of the wording of subsection (1), which states "A fixation of a broadcast or a cable programme, or a copy of such a fixation, may be made . . . ". Does this mean that an educational establishment could only make one fixation of a broadcast or a cable programme? People who contacted me about this felt it was important to put this in the plural, so that there would be no confusion about it later and they could make fixations of more than one broadcast. At present, it could be taken to mean that only one broadcast or cable programme is allowed. A large establishment might need more than one fixation of a broadcast or cable programme. There is a double issue here. I would be grateful if the Minister of State told us his proposals in this regard.
As it stands, one could read the section as meaning that if a school or establishment made a fixation in 2000 it could never again make a fixation. It states a fixation "may be made . . . for the educational purposes of that establishment". That could be interpreted as meaning that once an establishment made one fixation it might never be able to make another. I know that is far-fetched, but the present wording could be interpreted in that way. The Minister of State should consider changing it to the plural.
I speak on the basis of advice about the Interpretation Act, 1937, and the drafting of legislation. I appreciate what Deputies have said. We want to ensure section 55 is inclusive of all cases that might arise. However, according to my advice, this amendment is not necessary. The amendment does nothing more than insert plural references to fixations, broadcasts and cable programmes. My advice is that the standard rule of construction in these cases is that the singular is taken to include the plural in Acts of the Oireachtas. I assure the Deputies their concerns are met in the drafting. I will ask my officials to look at this again but they have already gone to the Attorney General's office and I have a copy of the Act.
It is clear that an educational establishment can make one fixation of different programmes. However, is the Minister of State also saying they can make more than one fixation of the same programme?
It would not restrict it in any way.
Amendments Nos. 51, 103, 104 and 105 are related and may be discussed with amendment No. 50. Is that agreed? Agreed.
I move amendment No. 50:
In page 48, subsection (2), line 22, to delete "certified under section 166”.
This is a certification issue. Representations were made by the Irish Copyright Licensing Association, ICLA, detailing its concerns regarding section 166, which deals with the certification of licensing schemes. The ICLA is concerned it may not be capable of being certified as it may not, in its opinion, be able to satisfy the requirements contained in section 166(2)(a), that is, that the works to which its licences refer can be identified with sufficient particularity. This is because, as far as authors are concerned, the authorisation to collect and administer royalties on behalf of its rights holders is obtained through the Irish Writers’ Union and not directly from individual authors. Some authors are not members of the Irish Writers’ Union and, in many cases, ICLA is granting licences and receiving royalties for the use of works without the specific authorisation of the rights holder. Such authors are normally glad to receive the royalties but this does not alter the fact that the legal basis for collection is questionable.
Having considered the matter, we took the view that in order to avoid any chance whereby an organisation such as ICLA would not be able to obtain certification, the certification provision contained in section 166 should be deleted. One of the factors influencing my decision is that, at best, certification is a relatively minor transparency provision attaching to operators of licensing schemes.
I have looked at this again and I would like to hear the views of Deputies on it. I asked my officials to meet this organisation and to discuss its problems. This is one solution. However, I am open to arguments and perhaps I will return to the committee on this. This amendment was drawn up by my officials in response to meeting this organisation. However, I may be flexible as we debate this issue.
Was the Minister of State asked to include this?
This organisation identified a problem, as I outlined, in regard to collection and the position of the Irish Writers' Union. Having discussed it with my officials, this amendment was the agreed proposal. We have had some debate on this issue but I am anxious to tease it out further, with regard to section 166.
Did the Minister of State ask it the reasons for asking him to include this?
The organisation came to us.
I know, but it must have had a very strong reason for asking for this to be included.
The reason was this disparity between it and the Irish Writers' Union in terms of certification. I am very anxious to hear the views of members on this, after which I will return to the committee.
I am not sure about this. I have not received representations from this organisation and I do not know why it thinks it would be unable to comply. I am somewhat puzzled by the Minister of State's response. He seems to be saying that if we had good arguments we might persuade him to leave it in. How could we leave it in, however, when he is proposing later that section 166 be deleted? Section 166 is the section which permits this certification.
They will have to go as well.
Is the Minister of State inviting us to say that? I am adamantly of the view that section 166 ought to remain. The proposition is that we would excise this entirely. I have reservations about that. It is one matter for the collecting agency to assert its rights and so on, but it is important that somebody certifies this. Any group of cowboys - which is not to imply the existing organisations contain any cowboys in their midst - could get together and assert rights under this, theoretically. Nobody is doing a quality control test of that. I thought it would be a useful protection for the Minister and his servants to validate and certify the scheme, etc. The first amendment under which this arises relates to section 55 and the standard formulation is included. Section 55(1) sets out a proposition from which nobody would resile. It is reasonable that in those circumstances no infringement of copyright would happen in the broadcast or cable programme concerned.
However, subsection (2) provides that this does not apply where there is a licensing scheme certified under section 166. If the proposal to excise the words "certified under section 166” is accepted, it will amount to an invitation to go to court because that mechanism will be the only way to contest the assertion of rights. Would it be possible to provide that the controller rather than the Minister should make the decision? While I accept the rights of the rights holders to their entitlements in the matter, I would be concerned where no quality control applies.
I would also be cautious about this. The Minister should retain the power to certify licensing agencies. I acknowledge the very good work undertaken by ICLA. While I understand its difficulties, we should be able to address them in so far as they pertain to the authors known to it and where it collects royalties on their behalf. If we accept the proposal to delete the words "certified under section 166” we will gut the Bill and may do the ICLA a grave disservice because we could open the possibility of other uncertified agencies entering the scene.
The registration and certification of licensing agencies should be compulsory and a proposal to this effect will be made. If they are bona fide and work properly everybody will be protected. Given this, the words "certified under section 166” should be retained.
The problem arises with the use of the words "licensing scheme". The purpose of amendment No. 50 is to enable us to consider a non-substantive section, but because the substantive section, section 166, is referred to, there is a necessity for the related amendments. However, if amendment No. 50 is agreed it will tie our hands when we consider section 166.
I have read the submission from the ICLA and note its concerns. I am opposed to removing any system that contributes to copyright owners and those who collect money losing out. In view of this, it is wrong to consider removing an element of certification, especially when the Minister will probably strongly argue against the establishment of a tribunal.
All these sections are interdependent on having a good working system where the controller is supposed to make judgments on conflicts of opinion, etc. As I do not believe an appropriate mechanism will be put in place to address that aspect, there is a need to examine the implications of these sections even more closely. Perhaps the Minister will surprise me and accept the concept of a tribunal.
This group wishes to claim exemptions from charging, which could apply under section 55, where, for example, a school has made a fixation of a broadcast. I assume section 166 provides that where a body agrees not to charge for that it can say there are certain limited occasions in a work where it considers that copyright is being breached. If, therefore, we delete the words "certified under section 166” we will give carte blanche to the licensing agencies to decide what to try and exempt from free use. That is wrong because the Minister should retain the power to say that a piece or work can or cannot be excluded.
The Minister of State rightly argued that the group suggested the words should be deleted, but it is clear from its notes that its only concern is that it may not be able to fully show that all the people it represents own the work. The group argues that if certification is to be retained, then section 166(2)(a) be amended to provide that the Minister be satisfied that “the licensing body represents a sizeable proportion of right holders in a particular class.” This is a much more minimal amendment and it does not propose to excise the entire section from the Bill. Did the Minister of State consider it?
The group sent him a copy of a resolution passed at the annual general meeting of the International Federation of Reproduction Rights Organisations, of which the ICLA is a member, calling on the Government to either remove from the Bill the concept of certification or to provide for certification of all licensing bodies, which is what our amendments propose. This body argues that if this element of certification is to be removed it should only be done on the basis that it is made obligatory on all licensing bodies to be certified. It is similar to the Government's proposal to introduce legislation providing that security firms must be licensed. The Government should be consistent about these matters.
The body argues that the concept of certification should be removed along the lines it suggests or, failing that, provision should be made for the certification of all licensing bodies whose terms of operation meet minimum standards of transparency. The Minister of State has cherry picked from these proposals and his amendment proposing the deletion of the words "certified under section 166” uses a sledgehammer to crack what is probably a valid case. It must be borne in mind that this is not what has been requested and I would, therefore, ask him not to proceed with amendments Nos. 50, 51 and 103 to 105, inclusive.
I understand the Deputy's concerns and I believe the Minister of State will see reason on this aspect. He listens carefully to the views expressed by members of the committee. However, we must be careful to ensure that these collection agencies, whoever they are, are licensed and certified properly because traditionally there have been problems involving them, especially when dealing with small businesses, some of whom feel they act like Dick Turpin at times. We need to look carefully at this and ensure that highway robbery activities are stamped out.
The amendment proposing the deletion of section 166 appears after amendment No. 105, but it is not numbered. Should it not be numbered amendment No. 106?
Presumably it is consequent on the acceptance of all the other amendments.
Members have probably detected that I did not press this very strongly. I asked my officials to deal with this issue. The committee will be aware that we have received many representations and have been very open in dealing with them. One organisation had a specific difficulty with this issue and I asked my officials to look at it and they proposed this solution.
We are all entitled to adjust our positions, but I first wanted to listen to the views of members of the committee. We should put pressure on this organisation to clarify its position. I do not, therefore, propose to proceed with this amendment.
Can I take it that amendments Nos. 50, 51 and 103 to 105, inclusive, are being withdrawn?
On a point of order, the Minister says he will ask his officials to go back to the organisation. Even though these amendments are being withdrawn, can I assume the Minister has the right on Report Stage, if he felt it was the right thing to do, to make this minimal amendment to section 166(2)(a) where they suggest that the licensing body represents a sizeable proportion? In section 166(2)(a) it says: “enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences, . . . ”. That is a different thing. I do not know whether that is feasible. I want to make sure that by withdrawing these amendments we are not precluded from inserting something on Report Stage.
No, we are not precluding anything because we will consider all these issues again when we come to section 166. There is a separate debate on compulsory registration. The Deputy is correct that all these issues are interlinked and I thank her for her views. I felt it was a bit awkward. She is correct that there is an underlying need for certification. It will be voluntary and it is a new provision. There are all types of arguments being made for the ICLA representation.
Is there more than one licensing agency involved in section 166?
All societies can apply to me for certification.
I move amendment No. 51:
In page 48, subsection (3), line 41, to delete "certified under section 166”.
There was some discussion about this matter when we were debating section 52, which took us a long time to deal with. The Minister indicated to me then that I unwittingly alerted him and his officials to a little gap in the amendments to the 1963 Act. When I asked him how could anyone make a copy of a typographical arrangement if it is not by a reprographic process - otherwise you have to copy it down like the monks of old - he said that this matter would be dealt with in section 56. There is no other way of copying a typographical arrangement. Is he proposing to do something with section 52 that will have a bearing on section 56(2) concerning "not more than 5 per cent of any work may be copied on behalf of an education establishment"? In section 52 they are allowed to copy the whole work but in section 56(2) they are only allowed "to copy 5 per cent of any work". Is there is a contradiction there? Perhaps I am reading it incorrectly.
We are not talking about photocopying in section 52.
When I raised it the Minister was puzzled as to how people would make such a copy if it was not through reprographics. In section 52 schools will eventually be allowed to make one copy by copying it. How does that tie in with "not more than 5 per cent of any work" if a person wants to copy the whole work?
Section 52 refers to transcript or copying by hand.
Thanks a lot. The schools will be thrilled about that.
They will be delighted. This law has its connections with other legislation and that is the reason some aspects of it are rather antiquated.
I am still not happy. There will be a combination of restrictions of the provisions in section 52. If a school stages a drama, what happens when they are allowed to make one copy under section 52, done by a person or a person acting for them in accordance with Deputy Rabbitte's amendment? They are allowed to make a handwritten copy of the libretto or the written word of the drama they wish to perform and they make one copy. They get someone, either a cleric or teacher, to sit down and laboriously copy by hand the written version. Under section 56 are they then allowed without any worry to photocopy 50 times what they have written under section 52 where they were only allowed to write it down once or does section 56 come into play and allow them to photocopy only 5 per cent of the hand written text?
Section 52 refers to copying by hand and copying a sound recording.
I realise that.
In this case it is specifically reprographic copying which is photocopying. With regard to the situation outlined by the Deputy, there would be restrictions on photocopying. I do not know whether her example would end up as a practical application of this provision. I do know this section must be dealt with under copyright legislation because of the dangers posed by multiple copying to copyright holders and that is where the "5 per cent" reference comes into play. Section 56 refers to photocopying.
The Deputy asked about the relationship between someone making a hand written copy and then photocopying it. Is that what she said?
Yes, and then using it.
There are photocopying restrictions as defined in section 56.
Yes, but may I remind the Minister that section 52(7) reads: "Where a copy that would otherwise be an infringing copy is made under this section. . . . ". Under section 52(2)(b) a handwritten copy does not infringe copyright and one copy can be made. Can I, as a school teacher, under section 56 ignore the phrase “5 per cent of any work” and make 50 copies of a non-reprographic copy made under section 52? It is not an infringing copy because it is a handwritten copy. I want to give it to all the pupils to allow them to learn their lines.
The Deputy would have beautiful handwriting after writing it out so many times.
I have not got beautiful handwriting but someone would be doing it and that is the only way a school teacher who wants to stage a show can do it without infringing copyright. If they copied it using a reprographic method they would be breaking the law because they can only copy 5 per cent of the work. They can only hand out 5 per cent of the work and they would have to make up the rest of it.
I would love to see this case end up in court. I do appreciate that it is our duty to scrutinise the Bill. When I was a teacher people would have made handwritten copies in most cases and then photocopied them, particularly for maths subjects.
I am willing to examine this. However, I do not see this happening as much as it did in the past. When it comes to photocopying, even if it is a handwritten piece, section 56 is specific about the amount a person can photocopy.
Earlier I talked about IMRO. I informed Deputy Stanton that there are collecting agencies operating in this area with which we must also hold discussions in respect of what will be the position on the ground, so to speak.
Do I take that the Minister of State is requesting that section 56 should remain part of the Bill?
Who will be responsible for policing section 56(2) which states that "Not more than 5 per cent of any work may be copied by or on behalf of an educational establishment under this section in any calendar year"? Will a school or a group of schools be obliged to appoint a copyright officer to record the dates on which, for example, 5% of Macbeth or Beowulf were copied? Will the officer be responsible for stating that further pages of those works cannot be copied until 15 January 2001? Will the Garda be responsible for policing this provision or will it fall to school attendance officers - of whom there are few - or will the secretary or caretaker in a school be responsible?
The position is similar to that which applies to musical concerts because we are dependent on the honesty of teachers and we are concerned with putting particular provisions into law. The Department would have a role in this area and, in my opinion, there is a great deal of scope for arrangements to be made between collecting agencies and schools.
I return to my point about musical concerts - my view is that we are putting through this legislation to protect rights holders and ensure that we have strong copyright law. As a Minister of State, I share people's concerns about the law and its application and we debated those points at some length at previous meetings. Under the law there will be scope for an arrangement between the Department and the collecting agencies. The Deputy is correct in saying that it is quite difficult to measure the 5%.
As I said earlier, we need a policeman. This is taking zero tolerance too far.
Who will police situations where children bring texts home to photocopy them?
We will need another policeman there also.
Will there be a need to police people's homes?
My understanding is that the Department of Education and Science currently pays a blanket reprographical licence fee in respect schools. The introduction of section 56 should not impinge on that arrangement. In my view, that probably deals with the members' legitimate concerns.
How much does the Department pay in respect of that blanket licence fee?
I do not know but I will inform members if I come into possession of any additional information in that regard before Report Stage.
Amendments Nos. 51a, 52 to 56, inclusive, and 67 are related and may be taken together by agreement. Is that agreed? Agreed?
I move amendment No. 51a:
In page 49, before section 57, to insert the following new section:
"57.-(1) Lending establishments which are specified by the Minister for that purpose shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of the work.
(2) Educational establishments shall be exempt from the payment of remuneration under section 39(1)(g) and should not infringe the copyright in a work by the lending of copies of that work.”.
I wish to indicate that I will be withdrawing amendments Nos. 53, 55 and 56.
We cannot deal with those amendments until we conclude our deliberations on amendment No. 51a.
The amendment states that "Lending establishments which are specified by the Minister for that purpose shall be exempt from the payment of remuneration under section 39(1)(g) and shall not infringe the copyright in a work by the lending of copies of the work.”, whereas section 57, as drafted, refers to “Educational establishments and establishments to which members of the public have access”. There are a number of lending establishments which are libraries but to which members of the public do not have access. I am informed that many of these are situated in Departments, for example. Under the section, as it stands, these establishments would not be able to lend works. The amendment seeks to allow such establishments which are specified by the Minister and which are lending establishments to lend in situations where members of the public do not have access.
Where stands the Chester Beatty Library, which is not an educational establishment as such, in terms of this section? Senator Henry moved a similar amendment in the Seanad and I do not know if the Minister of State has had an opportunity to reconsider the position. It would be essential that restrictions were not placed on material moving from one type of library to another. The purpose of lending libraries, regardless of whom they serve, is that they are not required to stock the same books. We want to ensure that if someone wanted to borrow a book from a law library - such libraries serve the needs of judges and other members of the legal profession - they could do so without infringing copyright. That is the thrust of the amendment.
The proposed amendments concern the exception to the lending right which is governed by the terms of the EU rental and lending directive. These amendments would extend the terms of the exception beyond the scope set out in the directive. In addition, some of them, for example, amendment No. 52, could be seen to involve a general extension of its terms to include libraries and archives maintained by commercial concerns. I am sure this would not be the intention of Deputies in tabling these amendments. For these reasons, I cannot accept the amendments in question.
I do, however, appreciate the intention of the Deputies in this matter. I should point out that since the concept of an establishment to which the public has access is open to broad interpretation and would include, for example, libraries to which members of the public have access. It is likely that most if not all non-commercial libraries - this covers Deputy Owen's concerns - will secure the benefits of the exception, consistent with the terms of the directive. This section even covers situations involving a "limited public". However, it would not cover, for example, a firm of solicitors' library.
They would have to pay copyright fees.
That is correct. The owner of that library would pay fees to a collecting agency. We are trying to deal with situations involving a "limited public".
I take it the Minister of State means that a large commercial firm of solicitors would obviously have to pay copyright fees to a collecting agency. I further presume that in referring to a "limited public" he is referring to what Deputy Rabbitte terms an "other library or archive" in his amendment. For example, there is a monastery in Killiney which holds the de Valera papers and which is not open to the public. However, on application to the monks members of the public can gain access. I presume that is covered by the section.
The danger with Deputy Rabbitte's amendment is the use of the words "other library or archive". My concern is that would encompass the scenario to which I referred, for example, a solicitor firm's library.
Would the example Deputy Lenihan outlined be permitted under section 57? There seems to be doubt about that. I was trying to provide for a specialist library scenario where there would be limited access. Do I take it from the Minister of State's example that if I borrow a book as a barrister from the Law Library it pays a fee and that will remain the case? This stipulates that these are establishments to which the public has access. That could be a moot point in the sense that they are not considered facilities to which the public would flock but, nonetheless, to close them off from the right to lend without infringing copyright would be severe.
My question is similar. What is the position regarding the Oireachtas Library? The public does not have access to it. Will libraries in Departments infringe copyright by lending, without permission, copies of work to other libraries? The term "establishments to which members of the public have access" is quite broad. An individual in a solicitor's library could decide to make it technically available to the public for access. Limited availability is provided and he or she could get around this provision. Our amendment is enabling as it allows the Minister to specify if and when a difficulty arose which library could lend without infringing copyright. Otherwise, this provision could act as a strait jacket. Will the Minister examine it again and come back to us on it?
There are two elements to this provision. Libraries in educational establishments are making the case that if they borrow or lend from a non-exempt library, they must pay. They cannot transfer the non-exemption they have to the library from which they are borrowing. Libraries covered by section 57 for lending would not be able to borrow freely from other categories of libraries. An educational establishment or one to which the public has access and is exempted from payment under this section would from time to time need to borrow a publication from an establishment not covered by the exemption. Public libraries provide a good service. If I request obscure information about outer Mongolia or on a policy in the Maldives from such an establishment, its staff will go to a great deal of trouble to obtain it for me. They will trawl the Internet and check libraries to which the public might not have access. Libraries are concerned that, having established themselves as educational institutions which are exempt, they cannot deliver the service they wish without paying copyright. It does not happen very often and that is why the amendment states "lending establishments that are specified by the Minister for that purpose shall be exempt from the payment of remuneration". The Minister can specify the Law Library, for example, but leave out private libraries.
Is our amendment not the same? It states "and are specified by the Minister for that purpose".
No, the Minister of State is confining it to educational establishments and ones to which members of the public have access. Other libraries may not fulfil these criteria.
Essentially, we must comply with the terms of the EU rental and lending directive, which ties our hands to some extent. This section meets Members' concerns, but we must be careful that we do not wander into the commercial area.
Is inter-library lending protected?
I am not clear whether it is. Inter-library lending takes place. Is it protected?
That is dealt with in section 63. This section deal specifically with library access for members of the public.
Inter-library lending for their own use is different. We are trying to make sure that if a library borrows from another which does not qualify as an educational establishment or one to which members of the public have access and that copy is subsequently loaned to me, the primary library must pay for the copyright. If the library keeps it for its own use, I assume another regulation covers that.
This can be dealt with under section 63. My advice is that these are separate acts of lending which are covered under different sections. Under the EU rental and lending directive the European Commission considered the need to provide exemptions for certain institutions and its recognition was contained in a statement it made on the final text. Public lending libraries, universities and educational establishments were approved as suitable for exemption. The purpose of this section is to give effect to this view in respect of educational establishments.
The definition of "public" is integral to defining a library which does not have public access. Somebody must have access to it and they are the wider public, even if they have another title when they are there. It states public lending libraries.
And then "and are specified by the Minister".
It is not "and/or are specified. . . . ".
It is "and are".
I thought it was "and/or" - if that was the case, the Minister could accept our amendment which would be in keeping with that.
Is the amendment withdrawn?
I think we will press it. I am afraid of the implications for libraries and the public. I would have liked the Minister to take the enabling power to specify the libraries. The specification mentioned in the section is limited to educational establishments and those to which the public have access. The Minister has tied his own hands. If he removed one of the qualifying terms and stated "educational establishment or any other library that is specified by the Minister", we would be happy. Deputy Rabbitte is trying to achieve the same in his amendment. I will press this amendment.
We will have to look at which members of the public have access. I told the Deputy we will define that as liberally as possible. We can interpret it on the basis of a limited public. If we must have a vote, we will have a vote.
Before we have a vote, will the Minister clarify the term "public" for the record? I presume that influences legal views taken on it. For example, going back to the de Valera papers in Killiney, as far as the Minister is concerned, that is an institutional establishment to which the public has access, albeit in that case, limited access by approval of the monks.
The European Commission has advised that there is such a thing as a limited public.
That is why I raised the word "public".
I said that earlier.
I am sorry, I must not have heard the Minister. Is he saying that when he refers to members of the public having access, he does not mean them going somewhere in their droves. If two people have access, is that public?
Where two are gathered in my name.
On the basis that I can specify particular cases, a limited public means just that. I know what it does not mean and I gave an example earlier.
Section 57 states, "Educational establishments and establishments to which members of the public have access and are specified by the Minister for that purpose shall be exempt. . . ". What purpose? Is it lending?
That they are either educational establishments or establishments to which members of the public have access.
". . . and are specified by the Minister for that purpose. . . . ". What purpose?
Education or public access.
But there are two sentences there - ". . . establishments to which members of the public have access and are specified by the Minister for that purpose. . . ". That does not make sense. Is the Minister specifying access to lending?
It is for the purpose of educational establishments and establishments to which members of the public have access.
Is the Minister saying that every library to which the public has access and every educational establishment will have to have a certificate stating they are specified by the Minister or similar wording?
In other words, the Minister has the power of specification and could solve the problem the librarians are foreseeing by giving a fairly open interpretation of the definitions of access to the public and an educational establishment.
Obviously the Minister has discretion.
Has Deputy Rabbitte spoken to amendment No. 67? I cannot take amendment No. 51a until that is cleared.
Is amendment No. 67 grouped with this? I do not understand why.
It refers to the exemption of librarians, archivists, etc.
This is the same as the Fine Gael amendment No. 56 which has been withdrawn.
We withdrew amendments Nos. 53, 55 and 56, tidied them up and included them in amendment No. 51a. Deputy Rabbitte decided to include the amendment similar to our amendment No. 56 before a different section.
We are dealing with Deputy Rabbitte's amendment No. 57.
Is the Minister saying that inter-library lending is provided for in section 63. Is he also saying that in response to amendment No. 67? What does his little black book say about that amendment?
I already dealt with this.
Amendment No. 67 is slightly different as it proposes that a librarian, archivist, person or establishment shall be exempt from the payment of remuneration. If a library wants to borrow from anybody, that copyright exemption will not be infringed. This makes it easier for libraries to borrow from others.
Deputy Rabbitte is correct that inter-library lending will be dealt with in section 63.
I do not think the Minister is listening. If I am reading it correctly, amendment No. 67 covers the possibility of libraries borrowing from private individuals. It states that"A librarian, archivist, person or establishment shall be exempt from the payment of remuneration . . . . . by the lending of a copy of thatwork to a library or archive prescribed by the Minister. . . . ". A prescribed library or archive could borrow a work from a private individual or collection without infringing copyright. For example, a library could borrow a rare copy of an obscure work from an individual and it would not infringe copyright.
I am trying to find out to what extent section 63 deals with the thrust of amendment No. 67.
This seems to go further than that. There is a broader question about lending. I will have to re-examine this. It is broader than section 63. One could ask whether it should be grouped with the other amendments, but that is a question for the committee.
That was my initial reaction. If it helps, I will withdraw the amendment and hear the Minister at a later stage on it.
We will take it separately later. Will that satisfy you?
Is amendment No. 51a withdrawn, Deputy Owen?
Yes, I will withdraw it at this stage.
Could we have some clarity? I know this is nit picking but Deputy Stanton raised it and I will raise it again. The wording suggests the Minister of State qualifies two things: educational establishments and establishments to which members of the public have access and which are specified by the Minister for that purpose. What does the phrase "for that purpose" mean? Does it mean for the purpose of being an educational establishment or for the purpose of being accessible to the public or for lending? It is terribly unclear what it means exactly. For the sake of the legislation, it is important we know what the phrase means.
It is obvious that they are educational establishments and establishments to which the public has access which are specified for that purpose by the Minister. I accept the language is rather cumbersome. Many experts drafted this section but I accept there is scope for improvement and I will ask my officials to re-examine it.
Does the Minister of State know what is the purpose?
Yes, it is for the purpose of education.
The word "that" qualifies the word "purpose". To what does it refer? Which of the two will be specified?
We must examine the drafting. It means for the purpose of qualification for the exception. We need to be more specific.
Is it for a singular purpose? Do both qualifications have to be present? Must it be an educational establishment and an establishment to which members of the public of access or is it one or the other?
The English is bad.
It is definitely one or the other. We need to examine the wording and try to improve it.
Surely it should read "for either purpose".
Or "for the purpose of lending". The point of the section is that they will be exempt if they lend copies of the work to the public. They are not exempt because they are an educational establishment but because they are the one which lends copies. That means the purpose is for lending. Is that correct?
I will have to come back to that.
Amendments Nos. 57, 62, 135, 136, 137 are cognate and all may be taken together by agreement.
I move amendment No. 57:
In page 50, subsection (1), line 12, before "archive" to insert "prescribed".
This is a purely technical amendment which is tabled for consistency purposes.
Does it have the ordinary meaning of "prescribed by the Minister"?
It is to ensure certainty and they would have to be prescribed by the Minister.
What type of archive is envisaged would be omitted and not so prescribed by the Minister?
Section 58(1) and (2) states:
(1) The Minister may make regulations for the purposes of this section and those regulations may make different provisions for different descriptions of libraries or archives and for different purposes.
(2) Without prejudice to the generality of subsection (1), the Minister may prescribe the libraries and archives to which sections 59 to 65 apply and may prescribe all or any of the following:
A list follows.
Does this go back to the discussion on amendment No. 52 where I sought to have a specialist library included? Is the purpose to exclude commercial libraries?
Amendment No. 58 tabled by Deputies Owen and Stanton is in substitution for amendment No. 58 on the principal list of amendments circulated on 18 January 2000 and is included on the second list of additional amendments dated 25 January 2000. Amendments Nos. 59 and 60 may be discussed with amendment No. 58 by agreement. Amendments Nos. 59 and 60 are alternatives to amendments Nos. 64, 64a and 65. These three amendments are related and amendment No. 66 is an alternative to amendment No. 65. Therefore, amendments Nos. 58, 59, 60, 64, 64a, 65 and 66 may be discussed together by agreement.
That is clear.
I move amendment No. 58:
In page 50, lines 17 to 23, to delete subsection (2) and substitute the following:
"(2) A copy made under subsection (1) shall not be supplied other than to a person who satisfies the librarian or archivist that he or she requires that copy for the purposes of research or private study and he or she shall not use it for any other purpose and that person shall not be furnished with more than one copy of the same article unless the person satisfies the librarian that the previous copy has been lost, stolen, discarded or destroyed or a reasonable period of time has elapsed, and that person shall not be furnished with more articles from a volume of a periodical than the number of issues that comprise that volume or 10 per cent of the volume, whichever is the greater.”.
This is of great concern to librarians. There was a mistake in the earlier amendment but we changed that. We want to see if the Minister of State will accept it. Librarians are very concerned about this area. If a person loses an article and they can prove they lost it, they should be entitled to a replacement. We also deal with the amount that can be copied.
This area is of concern to librarians and archivists and calls into question the policing of the legislation. Will a policeman stand beside every librarian and archivist and out that they gave a copy of material to someone six months ago? This provision is unduly restrictive.
It has been pointed out that the restriction to one article in a periodical does not take account of the fact that periodicals are stored in volumes. Periodicals in the Oireachtas Library are clipped together and stored in volumes. If one wants an article from four periodicals in the one volume, will one have to pay copyright on three of them? This amendment seeks to recognise that copyright must be protected, but one cannot unduly restrict librarians and archivists from doing their work, or prevent people from obtaining material from them. It is important that a person satisfies the librarian that the material has been lost. This would be easily achieved unless the person comes back every other week claiming he or she needs further copies of material he or she already obtained.
I hope the Minister of State will accept this amendment. He has used other limiting mechanisms in a negative way in that one can copy only 5% of a reprographic document. Will the Minister accept this amendment and include in the Bill the provision regarding the number of issues that comprise a volume or 10% of the volume - whichever is the greater? That would place a limit while recognising that people might need more than one article.
I share Deputy Owen's concerns. As it stands the section is too restrictive. I tried to deal with this in amendment No. 59 which is grouped with this amendment. My amendment seeks to provide for a situation where a person can satisfy a librarian that the previous copy was lost, destroyed or whatever. That is not difficult to imagine and it can happen. A student can leave his or her papers on the 39A bus or at the Red Cow roundabout. This could become an issue on the doorsteps as parents complain that their little dears cannot get second copies. The provision seems unreasonable and I do not understand why we have to be so prescriptive.
Deputy Owen's point about the one article also highlights that the provision is too restrictive. In any typical scientific journal there may be two or three articles criticising another article and the criticisms may be more valuable to a student than the original article. I am not sure I understand what we are trying to protect. The Lord help us if the EU continues like this, as one will be able to go around St. Stephen's Green only in the one direction. Perhaps the Minister of State is codding us by telling us he cannot do anything about this because he is following instructions laid down in Brussels.
We received a submission from librarians pointing out that unfortunate college students may get only one copy during their lifetimes. Under the Bill as drafted they would not be able to get a second copy even if they returned 30 years later as a mature student. This seems extraordinarily prescriptive and is more appropriate to a car hire purchase agreement than copyright legislation.
We will be able to do something with some of these amendments, some of which are alternatives, and relate to the exception in favour of copying by librarians. I will accept amendments Nos. 58 and 64 if pressed, which I presume they will be. However, I will not accept amendments Nos. 59 or 60. Amendment No. 59 is incorporated in amendment No. 58 which achieves the same end as amendment No. 60.
I would like to give further consideration to amendment No. 64a. Amendment No. 65 and the new version of amendment No. 66, submitted by Deputies Owen and Stanton yesterday, are alternatives which embody the same principle, which I can accept. However, before deciding which to accept I would like to hear from the Deputies concerning the advantages of the new text of amendment No. 66 over amendment No. 65.
I have carefully considered the representations made to me and this committee by librarians on various aspects of the Bill which affect their work. My acceptance of some of these amendments shows that I am anxious to ensure the terms of the legislation accommodate the realities of their work as closely as possible, without undermining the legitimate interests of copyright rights holders.
In the same spirit I wish to give further consideration to amendment No. 64a before Report Stage. There is a problem with this amendment in that it appears to impose a precise restriction on the operations of libraries with which they might find onerous to comply. However, I will give this matter further thought and would prefer if the amendment was not pressed.
I wish to make two general points regarding library exceptions. The sort of copying carried out by librarians is essential to the social and educational health of the community and justifies the existence of limited library copying exceptions. However, copying of this nature is also potentially a very powerful method by which the legitimate copyright rights of rights holders can be undermined. Therefore, formal exceptions to copyright in this area must be restricted, even in relation to small amounts of copying, if serious abuse is to be avoided.
In pressing for changes such as that embodied in amendment No. 65, I would be concerned that librarians may impose burdensome verification requirements on themselves as regards the operation of their exception which, in the real world, they do not need. However, I respect the concerns expressed by Deputies on these points and will accept amendments Nos. 58 and 64, and amendment No. 65 or 66. It will be necessary for me to keep the outcome of these changes under careful review to ensure they do not impose unreasonable burdens on rights holders or, in this case, on librarians.
Can I clarify that the Minister of State will accept amendment No. 58 if pressed? Will you accept it if it is not pressed?
We will press the amendment.
I presume it is being pressed.
Are you accepting it?
Yes. I am accepting amendments Nos. 58 and 64.
I move amendment No. 59:
In page 50, subsection (2), line 21, to delete "or" and substitute "unless the person satisfies the librarian that the previous copy has been lost, stolen, discarded or destroyed or a reasonable period of time has elapsed, and that person shall not be furnished".
I am happy that this amendment is being incorporated.
I move amendment No. 60:
In page 50, subsection (2), lines 21 to 23, to delete "or with copies of more than one article contained in the same issue of a periodical".
Will the Minister of State accommodate the point raised in this amendment? If so, I will withdraw it.
I move amendment No. 61:
In page 50, subsection (3), line 25, after "periodical" to insert "with the exception of the table of contents".
I will accept Deputy Rabbitte's amendment.
I move amendment No. 62:
In page 50, subsection (1), line 27, before "archive" to insert "prescribed".
I move amendment No. 63:
In page 50, subsection (2), line 36, to delete "will" and to substitute "shall".
"Will" and "shall" have two different meanings. The subsection will now read"he or she shall not use it for any otherpurpose . . . ".
I refer the Deputy to line 20 of page 50 where "shall" is used. It is simply a technical, grammatical change.
I move amendment No. 64:
In page 50, subsection (2), line 37, to delete "or" and substitute "unless the person satisfies the librarian or archivist that the previous copy has been lost, stolen, discarded or destroyed or a reasonable period of time has elapsed, and that person shall not be furnished".
This amendment is in substitution for amendment No. 64 on the principal list of amendments circulated on 18 January 2000. This amendment No. 64 is on the additional list of amendments, dated 25 January 2000.
Is there any possibility of these amendments being incorporated in a single publication before we resume Committee Stage? There are at least five sheets with different amendments, etc. I am now told that amendment No. 64 on the original list of amendments is not the one being discussed.
I am informed that this is the way we must do things. Amendments which are submitted must be separated in this form.
I must get elected to Parliament to see if I can change some of these things.
The Deputy will have to become a draftsman.
The amendment is that which appears on the list of 24 January.
It is reasonable for everybody, including the Minister of State and the expert officials, to make mistakes in submitting amendments because it is so complicated. When we inform the Bills Office that we want to withdraw one amendment and substitute another, the original must remain. Is that the procedure as it stands?
That seems to be the procedure. Once consideration of amendments has begun, changes to amendments must be done in Committee and not through the Bills Office. That is my information. I understand that if the Deputy is not satisfied with that information she must take it up with Committee on Procedure and Privileges. It is quite complicated.
I move amendment No. 65:
In page 50, subsection (1), lines 40 to 42, to delete "other than to a person who satisfies the librarian or archivist that his or her requirement is not related to any similar requirement of any other person" and substitute "to more than three persons whose requirements are related to any similar requirement of any other person".
The point of the amendment is that it will give access to up to three persons.
Am I correct in saying that Deputy Rabbitte's amendment is the same as amendment No. 66 tabled by Fine Gael, but that Fine Gael has revised its amendment?
That is correct.
I will accept either amendment.
We will withdraw our amendment.
I move amendment No. 66a:
In page 51, lines 16 to 19, to delete subsection (2) and substitute the following:
"(2) Subsection (1) shall not apply when it is possible as a result of reasonable enquiry to ascertain the copyright owner with whose consent the making of the copy could be authorised.”.
The section states that the librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make and supply etc. That is fine but where it is possible by reasonable inquiry to ascertain the copyright owner, we feel that should be done.
Put simply, we believe that the existing text is preferable to that proposed in the amendment. It is necessary that there would be an obligation to actually obtain consent where that is possible, which requirement is secured by the current text.
This is the section to which the Minister of State referred earlier, although I have almost forgotten the point about which we were concerned. I presume the section refers to lending between one library and another. There is an assumption that libraries have been prescribed. The section provides that the librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make and supply to another prescribed library or prescribed archive a copy of a periodical or articles or the contents page contained therein or the whole or part of a work and so on. The restrictions which exist between lending to schools etc. are changed here.
The section further provides that a periodical or articles or the contents page contained therein or the whole or part of a work may be supplied without infringing any copyright in the periodical, in the article, in the contents page . . . or in the typographical arrangement. Do the words "which has been lawfully made available to the public" refer to the fact that the periodical, article or work has been on sale to the public? Do they mean that libraries which lend material to other libraries can only do so without incurring copyright expenses if the work they are lending has been lawfully made available to the public and has been for sale?
What section are we discussing?
Section 63. Let us consider Deputy Conor Lenihan's example of the de Valera papers. They were not made lawfully available to the public in the sense that they were a one-off. If a librarian or archivist in one library contacts another library which holds those papers in an attempt to borrow them, what effect will the term "been lawfully made available to the public" have? I do not know whether the papers have been lawfully made available to the public at any stage. I would have thought they were private papers.
Section 39 contains a definition of the term "making available". Perhaps the Deputy might examine that.
The example I give would not be covered by that definition. Section 39 states:
(1) References in this Part to the making available to the public of a work shall be construed as including all or any of the following, namely:
(a) making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of work through the Internet);
Would that cover the de Valera papers?
As I understand it, section 39(1)(g) which states “lending copies of the work without the payment of remuneration to the owner of the copyright in the work” covers them.
Is Deputy Owen satisfied with that?
I am not in the sense that I do not know whether such papers are available to the public in any form other than perhaps to someone who may be researching a book.
The issue was covered by the EU directive which makes it clear that there can be a limited definition of "the public".
If a private citizen is requested by a library to lend a particular book to the library for use by someone else, is that covered by the legislation? Would such a person run the risk of infringing copyright or is the matter important at all?
We are getting into great detail here. I will consider that matter and report back to the Deputy.
I understood that it was illegal to export some of these cultural and historical documents.
The section states that a copy of a work must be made prior to its export.
My understanding was that there was a prohibition, under arts legislation, on the export of such documents. This legislation seems to state otherwise.
I would need to consult with the Minister for Arts, Heritage, Gaeltacht and the Islands on that.
This Bill would seem to go against the spirit of arts legislation in so far as that legislation seems designed to prevent, as far as possible, the export of historical and cultural documents.
I presume section 66 would apply to a limited edition original Yeats publication, for example. I presume that if only one copy of such a work existed, it could not be exported. It would be impossible to ban the private sale or export of a privately owned book.
One would not break copyright law by copying such a work before it was exported. On the question relating to the Minister for Arts, Heritage, Gaeltacht and the Islands, I will check that and report back to the Deputy.
There seems to be a suggestion that it is all right to export it if you have kept a copy. That would go against the spirit of the legislation which was designed specifically to stop export of these valuable documents.
I move amendment No. 67a:
In page 52, before section 67, to insert the following new section:
"67.-Where a copy which would otherwise be an infringing copy is made under section 60, 61, 63, 64, 65 or 66, was subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.”.
What does the amendment seek to do?
The amendment proposes that if a library makes a copy, that copy cannot be used for commercial purposes later.
I thought this related to section 67. It is an insertion before 67?
It finalises the previous chapter.
As I understand it, no copyright can be infringed in the Dáil or in the courts and reports of same under subsection (2) carry no copyright in the report itself. This seems to be right and proper but is section 67 diminished by section 71(2)? This reads:
The Government or either or both of the Houses of the Oireachtas shall not make available to the public copies of a work referred to in subsection (1) or cause the work to be copied or made available, under this section, where the work has previously been lawfully made available to the public otherwise than under this section.
As I understand it, under section 67 the DIRT report could publish a particular annex that might be included or envisaged. Members of the committee will recall the Wallace report. The Wallace committee was not a great success because the inquiry was political by definition. However, it published a number of documents as annexes or appendices to the report which seem to me would not be permitted under section 71(2). I raise this matter in the context of section 67 which seems to give protection to parliamentary and court proceedings. However, section 71 seems to diminish this.
My understanding is that one is not infringing copyright if one needs to use a piece of work to carry out a parliamentary or judicial function, nor is one infringing it if one is reporting parliamentary or judicial proceedings. Section 67(2) reads that it does not authorise the copying of a work, I assume without infringing copyright, which is itself a report of the proceedings which has been lawfully made available to the public. My understanding of this subsection is that one can use something in parliamentary or judicial proceedings without infringing copyright but one cannot copy the work if the report of the proceedings has been made available to the public, I assume through the Government Information Service. Why is this the case and is it a problem for us as Members of Parliament? Is it a breach of copyright if we receive a copy of the proceedings of parliamentary committees and pass them on to an interested group by making a copy of the copy of the proceedings?
I say this because on another occasion we were considering the banning of St. John's Wort and we received a submission from health shop owners. The committee agreed to print the verbatim proceedings of that meeting. I understand when a member of the public, who was an interested party, asked for a copy of the written verbatim report, which would be the reporting of the proceedings of a parliamentary action, they were told they could not have a copy of them but that they could have a video of the hearing of the committee. So we are back to the monk copying down what happened on the video, so to speak. This person was told that he or she could have a copy of the video of the committee hearing but not a copy of the transcript of the committee proceedings. I cannot understand why this was the case. We all were entitled to get copies of the transcript. Under subsection (2), would we be precluded from copying a work which is in itself a report of the proceedings which have been lawfully made available to the public? Is the aim to make people buy a copy rather than obtain a copy from members? This matter needs to be clarified because we could find ourselves in deep water.
Deputies made the point I was about to make. I am less alarmed by Deputy Rabbitte's interpretation because I presume the intention of section 71(2) is to cover the possibility of a parliamentary inquiry into a book such as the Satanic Verses whereby the Oireachtas could not publish the entire book in report form and then have it available to the public as a free read. I presume this is the concept behind the section, even if it is not immediately clear. Like Deputy Owen, I am worried about subsection (2) which seems to imply that we could not circulate copies of committee proceedings. I circulated the minutes and transcripts of the proceedings of the House in the Sheedy case to one of my constituents who was the husband of the person killed. It worries me that I could not do the same again if this legislation is passed.
Deputy Rabbitte has tabled an amendment to section 71. Obviously there is a difference between both sections in that section 67 refers to any work available for parliamentary or judicial proceedings. Section 71 relates to works communicated voluntarily to the Government. I will reply in detail later to the amendment tabled in that regard.
Section 67(2) refers to not authorising ". . . the copying of a work which is itself a report of the proceedings which has been lawfully made available to the public . . . ". That could also apply to the newspapers. It does not presume that a person would not be infringing copyright in that situation but he would be if the material was made available to the public.
The net point is that copying of work which involves parliamentary or judicial proceedings, if such works are made available, does not constitute an infringement. Section 71, which we will come to deal with shortly, also deals with this point.
I am perhaps starting to see this more clearly. If in the course of a parliamentary committee's examination of a complaint in relation to a lewd book sections of that book are transcribed into the Official Report of the proceedings, is it the case that one cannot in turn authorise the copying of the proceedings because they contain sections of a work available to the public? Is that the point that is being covered? Copyright of the proceedings is not the issue, rather it is the copyright of the "work" being examined.
That is right.
It relates to where the proceedings contain large sections, or as Deputy Lenihan said, a whole book as an annex of the report. Is this provision to deal with a case where perhaps a committee which examines a magazine or poem includes it by way of annex to its report?
A copy of the proceedings could be released but not one of the work examined.
Yes. It tells the public they should purchase reports produced by parliamentary committees from the Stationery Office.
I am right, therefore. We are trying to stop them getting free copies from us.
It also makes clear the point in regard to parliamentary and judicial proceedings that copyright in a work made available there is not infringed by anything done by parliamentarians or the Judiciary.
I take it that if, for instance, Deputy Owen makes available the transcript of these proceedings for the bona fide purposes of being a representative pursuing an investigation of this Bill she is not infringing copyright law.
No. I understand what the Minister is saying. It would only arise if an element of the reporting of these proceedings included, for example, the Minister of State reading the transcript of a book which was covered by copyright into the record. I can continue to circulate the proceedings of a committee provided the report is not exclusively a copy of the work being discussed. Is that what it means?
Is everybody clear?
Why is such a provision necessary? Will the Minister of State give us a practical example of when this provision would be invoked in a parliamentary or court environment? Who are we sheltering? What is the point?
I do not have a list with me.
What has the Minister of State got in his pocket?
I presume we could be talking about a case whereby a book becomes part and parcel of an investigation by a committee. We are trying to protect the interests of the person who wrote the book.
I will give an example which touches close to the bone of my party's history. Let us say Joe Joyce and Peter Murtagh wrote the book The Boss and let us say a theoretical tribunal was investigating events in the 1980s. Let us assume the book, because of its investigative character, becomes the centrepiece of the tribunal because it is discovered that contained in that book are allegations previously not investigated. If the tribunal published the book as part of its public proceedings and reports, the effect would be to infringe Mr. Murtagh and Mr. Joyce’s rights. In effect, the book which they wrote for commercial gain is available freely to the public. Their royalty rights are infringed because the whole country is talking about the inquiry of which their book is the centrepiece, yet they are not receiving royalties.
I cannot understand how Deputy Lenihan was passed over last week. That is a splendid example.
We have one Minister in that constituency already.
I mentioned reports of parliamentary proceedings in the newspapers. This provision would protect the copyright interests of a person whose report of proceedings was copied by another person. The example given by Deputy Lenihan would be covered by section 71. We need to make that distinction. This provision relates to works, such as photographs, which could be communicated to Government.
Deputy Lenihan's example could also arise if judicial proceedings on a libel case were reported with the book from which the proceedings arose attached. I assume section 67 would not have been included unless the Minister of State envisaged problems arising in this regard.
Section 67 has a much broader interpretation. Section 67(2) refers to reports of proceedings. I would be happy to provide examples of this to the committee later. The picture will become clearer when we come to deal with section 71. It covers how we would deal with the examples given by Deputy Lenihan.
Section 67 deals with parliamentary and judicial proceedings which comprise one set of circumstances. Section 71 is about work communicated to the Government or the Oireachtas for all sorts of reasons. One or the other is needed. The Minister of State has not told us why section 67 should be separate from section 71. If this is covered under section 71, what was the purpose behind inserting a separate section about protecting the copyright of a work which might be used in judicial or parliamentary proceedings? Whatever about judicial proceedings in section 67, why were parliamentary proceedings covered in section 71? It would make more sense if section 67 simply dealt with judicial proceedings for the purposes of reporting.
Does section 71(2) diminish section 67? Can they be reconciled? It is possible that something covered by section 67 would be reported to the Government, as envisaged by section 71? Section 71(2) seems to say that there are restrictions.
I am looking forward to teasing this out further in section 71. The concerns of Deputies Rabbitte and Owen will be dealt with when we talk about "works made available" to the Government. I mentioned newspapers. If a journalist wrote a report of a court case or parliamentary proceedings, another journalist is not free to copy that report because the journalist or newspaper in question may own copyright. This is a straightforward section to deal with reporting judicial or parliamentary proceedings. In this case we are talking about a different situation in which works are communicated to the Government. We will deal with the Deputies' concerns when we discuss section 71.
There seems to be a contradiction between section 70(1) and (2), which are very similar in their wording. Section 70(1) refers to". . . a purpose which does not involve the making available to the public of copies . . . " and section 70(2) states that copyright in the material is not infringed ". . . by the copying ormaking available to the public of copies of that material . . . ". That is a contradiction.
We are talking about material on a statutory register. It is in the public interest that people can copy certain documents, such as those in a planning office. We are talking about material open to public inspection or statutory registration.
The wording in the subsections is almost identical.
The second subsection exists to enable material to be inspected at another time or place. That means that it can be taken away. That is different from copying it on the spot.
Two subsections have to be added instead of qualifying the first subsection?
We are at section 70. The Minister of State wishes to make some comments.
I told Deputy Stanton before I left that copying material is allowed for - I offered the example of a local authority - provided it is not made available to the public. The work would be factual. The second provision I referred to is like the time shifting issue, but in this case it allows for taking material away.
It seems contradictory.
Local authority offices do not lend themselves to easy inspection of some materials. We all have experience of this. In the circumstances, the Department considered that it would be helpful to the public if people could take a copy of certain material and inspect it at a more convenient place and time.
It could also be possible that some items on a company's office register or in company accounts could be protected as artistic works. This relates to the rights holders rights. For example, a company logo could appear on a company's accounts. Such a logo might be protected as an artistic work and subject to cover and protection under the law. Scanning devices which are now used to input accounts and information onto computer records could copy such logos without ever wishing to issue copies to the public. It is considered that such copying is not contrary to the interest of the author and, as such, should be permitted. Section 70(1) ensures that the exception applies in relation to any type of work.
I hope I have been helpful in clarifying section 70 (1) and (2).
I move amendment No. 68:
In page 54, lines 1 to 6, to delete subsection (2).
I have already spoken on this amendment out of turn. I am not sure I understand, in the first place, how subsection (2) reconciles with section 67. Second, it appears that freedoms that parliament ought to have to publish reports that might include appendices such as are encompassed by subsection (2) would be constrained or not permitted. I cannot see the purpose of subsection (2).
We are talking about works made available to the Government. I cannot accept the amendment.
There might be some confusion about this subsection. The purpose of section 71(2) is designed to prevent the necessary exception in favour of certain communications by the Government or the Houses of the Oireachtas from being abused, in particular by republishing works which have already been published or made available through normal, usually commercial, channels. This might seem unrealistic but I am advised that discussions on this matter have taken place in the context of the negotiations on the EU directive on copyright and the information society, which suggests that the enactment of a provision along the lines of section 71(2) is necessary if the section 71 exception as a whole is to be regarded as compliant with EU and international corporate law.
I hope Deputy Rabbitte will agree not to press the amendment. It is always useful in these cases to offer examples. One example would be a photograph being made available to the Government, let us say it is a photograph from the scene of the Veronica Guerin murder, and it is incorporated in a Government report. This section would not allow the Government to reproduce that photograph in huge numbers. One might say that it will never happen, but I am advised that there have been lengthy discussions at EU level on this. It is necessary to include this subsection to give protection in that situation.
Let us say, for example, that a photograph to which somebody has copyright is given to the Government or to the Dáil for work that is being done by a committee. That photograph is copied and circulated to the members of the committee because it will be examining the photograph and other matters surrounding it. The committee circulates, for example, 15 or 20 copies of the photograph to the members and during the meeting another 15 or 20 copies are made available in case members forgot to bring their own copies. Let us say the photograph is relevant to the final report of the committee and the report is printed with the photograph included. Subsection (2) states that one "shall not make available to the public copies of a work referred to in subsection (1)”.
A committee may have printed its report on, for example, large supermarkets and for some reason something is included in the report on which there is copyright. The report is made available through the Government Publications Office. I assume, Chairman, that copies of reports are placed in the Oireachtas Library but if a member of the public wishes to buy it, they can do so in the Government Publications Office.
Yes, if it is published.
Is that not in breach of the subsection? It provides that "The Government or either or both of the Houses of the Oireachtas shall not make available to the public copies of a work referred to in subsection (1) or cause the work to be copied or made available, under this section, where the work has previously been lawfully made available . . . ". If this work we are talking about, be it a photograph or other work, is part of the committee's evidence, the committee wishes to make a public report available and all the small grocers in the country come to Dublin to buy the report, the committee will have breached subsection (2). Is that not correct?
No. Section 71(1) refers to making available to the public ". . . copies of the work, or cause the work to be copied or made available to the public for the purpose for which the work was communicated to them . . . ". The work must fall within the objective of ".. for the purpose for which the work was communicated to them . . . ". More importantly, in this case we are trying to protect the copyright interests of the photographer in the case I mentioned so the reference ". . . which could reasonably have been anticipated by the copyright owner——
Therefore, the copyright owner would need to know that we might use it in a report.
Yes. He or she should have known that the type of situation outlined by the Deputy would take place.
Will the committees have to alert people to the effect that if they give the article or photograph, they are giving it on the understanding that it might form part of a published work? Is there an obligation in the Bill for committees to tell somebody that?
Not that I know of. It is up to them to know. I can give another example which might be useful. Many consultants are hired to carry out tasks for the Government and Departments. Let us say a consultant carries out a valuable analysis on an issue and that he has an exclusive contract to do that work and that 30 or 40 copies of the work he produces might be circulated in the Department. That is acceptable in the sense that the author would know that kind of limited use would be made of the material, but the Department would not be entitled to produce, say, 1,000 copies. That is the purpose of this measure. It is rather suspicious of the Government of the day but it gives protection to the rights holder in this case.
An example of a breach of that measure would be somebody providing a very startling photograph which they then found became the Minister's Christmas card.
Obviously somebody handing it in would not have given it for that purpose. If one uses somebody's picture for a postcard, one must get the person's permission. That is the kind of wrong use——
That is the kind of thing Deputy Callelly would do rather than the Minister.
He uses his own photographs.
He uses his family.
I hope the Chairman has copyright in respect of his old family photographs.
I do. They are becoming collectors' items, by the way. How does amendment No. 68 stand?
Surely it is possible that a report arising from section 67(1) would be reported to Government as envisaged in section 71(1).
We are talking here about somebody from outside communicating a work to the Government. There is a clear distinction between that and parliamentary or judicial proceedings involving, in a very broad way, works in general. This is very specific with regard to the rights owner communicating work voluntarily to a Government.
Are we saying then that section 71(1) excludes a situation where matters arising under section 67(1) would be reported to Government? It would be usual for parliamentary proceedings under section 67(1) to ultimately go to Government, and the circumstances we have just discussed might well be included in that report. Do I understand the Minister now to be saying that section 71(1) only deals with communications from outside Parliament or outside the court environment?
This section covers a particular situation, to which the Deputy is not referring, which is to protect an individual or group of individuals who would voluntarily give some work to the Government. The Government is rightly being restricted with regard to what it can do, but it is very specific.
The very first line refers to where a work has been communicated to Government. It does not refer to a work communicated by an outside party to Government. It does not seem to preclude such a work being communicated to Government from the proceedings of section 67(1), but the Minister is saying it is intended that such communication, normally from a parliamentary committee to Government, is not encompassed by section 71(1).
The DIRT report, for example, has gone to Government. Different Departments, including the Minister's, are acting on it. Suppose there was such an appendix to the DIRT report as Deputy Owen averted to. I am trying to establish whether that could be communicated to Government in the meaning intended by section 71(1).
Perhaps I could be helpful. It has been brought to my attention, and I understand, that committees of the Oireachtas are guided by the Standing Orders of the Oireachtas which are guided by and arrived from the Constitution and which supersede legislation. The reference the Deputy has just made to the Committee of Public Accounts, for example, would be covered under the Standing Orders of the Oireachtas, not by legislation, and that supersedes anything in legislation. That may help to cover the point the Deputy has just raised.
Deputy Rabbitte has identified a connection between sections 67 and 71, which is something we clearly had not envisaged in the Act. I would be happy to examine that in respect of the specific example the Deputy has given of the DIRT inquiry. We are happy with it as it stands but it is a fair point that we should see if there is a linkage between sections 67 and 71. I will be happy to ask my officials to examine this further to see if it needs to be tightened up.
I appreciate that. If the Chairman is right we could do precisely what Deputy Owen feared we would not want to do. The Committee on Justice, Equality and Women's Rights could prepare a report, attach a very exceptional photograph of the Veronica Guerin tragedy, and subsequently communicate that to Government as envisaged by section 71(1). Is that not right?
We need to see where that example fits in and where the copyright interests and protections lie. The Deputy has given me an example of a particular situation and we need to ensure the Bill covers that. We will do that between now and Report Stage.
Members may be interested in reading Standing Order 78 and new Standing Order 78(a) which refer to the power of the select committee to take oral and written evidence and to print and publish from time to time minutes of such evidence taken in public before the select committee, together with such relevant documents as the select committee thinks fit.
There is a power to publish the minutes. You were not here earlier when I said that somebody who sought the minutes of a meeting of our committee was told they could not have the minutes but they could have the video of the proceedings.
As the Deputy knows, this issue has arisen on numerous occasions, particularly in regard to people making presentations who have sought the minutes, but the response is that when the committee agrees to publish the minutes, they are entitled to receive a copy.
My understanding is that we had agreed to publish these particular minutes about the health shops, yet the person who requested them was told they could not have the minutes but they could have the video of the proceedings.
If they were published and laid before the House, they are available.
They may not have been.
Let us not get away from the issue.
Will the Minister of State give examples of what section 75(1) and (2) mean? Section 75(1) states, "The making of an object of any description which is in three dimensions shall not be taken to constitute an infringement of the copyright in a work in two dimensions, if the object would not appear, to a person who is not an expert in relation to objects of that description, to be a reproduction of the work." I take the reference to "two dimensions" to refer to a two dimensional drawing of a work. How does one define a person "who is not an expert? Does that subsection refer to an artistic work? It is unclear to what kind of work it refers.
Section 75(2) indicates that if a three dimensional object is a copy of a two dimensional object, provided the lines, contours, shape, texture and materials are applied or wholly substantially functional, that would not constitute infringement of the copyright in a work. This is where a non-expert would have difficulty.
A councillor, who was a member of Dublin Corporation, who has passed on to his reward had difficulty with some of the art the corporation bought for its delectation.
Is the Deputy referring to the naked statutes?
We would need him to work out whether a three dimensional depiction of a two dimensional work constitutes an infringement of the copyright in that work because the lines, contours, colours, shape, texture and materials or ornamentations that appear in the work and are applied to the objects, are wholly or substantially functional. I do not have the slightest idea what that means.
It sounds like something one would get in the Ann Summers sex shop.
Does the Deputy have experience of that?
Does it mean the three dimensional bits that hang from such objects, or are contained in them, have to be moveable and functionary?
Bring back Ned Brennan.
Deputy Rabbitte introduced a Bill in this area. He and other members will know that on the intellectual property side there is patent law, copyright law, trade mark law and design legislation. Before the summer recess I will introduce a Bill dealing with designs, which will deal with many of the questions that were raised.
The purpose of section 75(1) is to ensure that the making of three dimensional objects, such as sculptures cannot be impeded by the copyright in drawings and or paintings. The purpose of section 75(2) is to ensure the making of copies of three dimensional works from two dimensional drawings is also permitted and that, for example, a manufacturer of spare parts cannot be impeded by the use of copyright in design drawings.
Section (2) states " . . . shall not be taken to constitute an infringement . . . where . . . . ". I take it the reverse of that is true. If an original object is two dimensional and it is reproduced as a three dimensional one, that would not breach copyright, but if the original object is three dimensional and it is reproduced as a two dimensional one, that would breach copyright.
That is right.
Subsection (1) contains the phrase "who is not an expert". The Minister of State used the example of a sculptor making a sculpture from a two dimensional drawing. He said if a person who is not an expert saw it and it did not appear to be like the original work, in other words, if the sculptor made a mess of it, that such an reproduction would not infringe the copyright in the original work. What is meant by the phrase "not an expert"?
A member of the public would not be an expert.
That would apply to a person who made a sculpture from a picture of the Pietà, which somebody did but he probably had a drawing of it.
If a member of the public did not recognise a copy to be a reproduction of a work, such a copy would not constitute an infringement of copyright in that work. Is that what is meant by subsection (1)?
Subsection (1) states, ". . . if the object would not appear, to a person who is not an expert in relation to objects of the description, to be a reproduction of the work". The answer to the Deputy's question is yes.
Such a person would not have breached copyright in the work?
He or she would not have breached copyright.
As Deputy Stanton said, copyright would not be breached as long as a person makes a mess of the copy and it is not recognisable from the original drawing.
Does the provision of this subsection cover the reproduction of a work in a hologram form? I presume such a reproduced work would be copyright protected. This could arise if the National Gallery chose to reproduce a copy of its famous Carravagio in a hologram form and exhibit it abroad to entice people to visit Ireland to see the original painting.
Is a hologram three dimensional?
A hologram is reputedly three dimensional, although I am not sure if it is.
A object is three dimensional if it has length, breadth and height.
A hologram has depth.
In effect, it is three dimensional.
Would the provision in that subsection prevent works being reproduced in a hologram form?
I would need to check that, but I presume the programme for making a hologram would be copyright protected. If I am wrong, I will revert to the Deputy.
If a sculptor made a sculpture of the said Carravagio and it was erected outside the gallery or across the road from it and members of the public could view that wonderful representation of the painting in three dimensional sculpted form, does subsection (1) provide that such a reproduction would not constitute an infringement of the copyright in the painting because the new three dimensional work would be deemed to be a new object, or would the new object constitute a new artistic work, or is copyright in the painting not infringed because the public would not see the new work as being similar to the painting?
We are concerned about the term "who is not an expert" in relation to the objects. To use a more topical example, a drawing of Bart Simpson is surely covered by copyright because all the cartoon characters are. If a person were to produce a three dimensional model of Bart Simpson and I, who am not an expert in making models, were to see the work and think that is a model of Bart Simpson because I recognise elements of it, such as the colours used, his hair and so on——
The Deputy is an expert on "The Simpsons".
I love it. It is one of my favourite programmes. That is why I am using this example. To reverse this, if I were an expert and recognised a work as being a direct reproduction of a two dimensional drawing of Bart Simpson, how do I tell somebody that I the copyright has been infringed? Regarding the phrase "the object would not appear", the reproduction of a work either breaches or does not breach the copyright in the original work. Why not complete the sentence by adding the words "should not be taken to constitute an infringement of the copyright in a work in two dimensions"? Why is there is a need to include a qualification by a non-expert who in the example I used would say the reproduced work does not look anything like Bart Simpson even though it does?
We are probably moving away from the purpose of this subsection. The subsection relates to design documents. That is why there is a reference to a person who is not an expert because it would take experts to study design documents to determine whether a copy constituted an infringement. A Bill dealing with designs will be introduced later this year. This subsection relates to the technical area of design documents.
Like technical drawings?
Yes. One would have to be an expert to know where there were infringements.
One can design a nice picture of something that is not highly intellectual as well. Does it give a description of what is meant by design? There is not any description in the Bill to state that design refers only to something of high technical standard.
There might be people who are not experts but who could still recognise something as a reproduction. The language in the section contains a double negative. Could I suggest using: "if the object would appear, to a person who is an expert . . . to be a reproduction of the work". In a court, therefore, an expert could be brought forward as a witness. Otherwise, there could be a situation where many people who are not experts are brought forward as witnesses. It is an objective thing. We are talking about if the object would not appear to a person to be a reproduction. Some people are gifted in different areas, although they might not be experts, and they could recognise a reproduction. There could be different degrees in the section. I wonder how this will be implemented.
One could use the phrase "it would appear only to a person who is an expert" and use positive language. I will look at that for Report Stage.
Subsection (2)(a) states: "the object is one of a number, in excess of 50, of identical objects which have been manufactured and made commercially available. . . ". Does that mean that somebody who commercially produces an object must make more than 50 of them and that it will be all right to reproduce that object from a drawing?
I understand the link is with the designs legislation in which the criterion of 50 applies.
This is the first section dealing with software, computers and so forth. I need to know who will police this and how and when it will be policed. It is not an infringement for a lawful user to make a back-up copy of a computer programme "which is necessary for him or her to have for the purposes of his or her lawful use". If a company has 200 staff and all 200 legally hold a computer programme that is properly licensed and they all make a copy of it, it is probably lawful. However, it can also be said that it is a means of leaving 200 more copies of the programme around which can be used by other people. My query is general because the section provides for people being allowed to make copies of computer programmes. How is it proposed to have this area policed?
This provision allows people to make back-up copies of a programme. It would be up to rights holders to protect their rights. Members will have received submissions from the software proprietors but it is for them and users to ensure that their rights are protected. That is how the legislation is framed. We have a great deal to discuss with regard to how that is done. I have tilted the balance towards rights holders and when we reach the relevant section I hope the committee will agree with it. I changed the law substantially in the short Bill I introduced last year and there was general agreement that we should improve the position of rights holders. This section simply provides for the back-up copy and is quite straightforward.
I must press this point because it will be a theme throughout this legislation. One of the major objectives of the Bill is to include the software and technology sectors which were not around in 1963 and even when the minimal Bill was being drafted. People who own copyright on software and computer programmes are extremely anxious about how companies will be obliged to comply with this part of the law.
This country does not have library or schoolground police not to mention computer police. Has the Government given consideration to the implementation of the Bill? Has it taken cognisance of a suggestion that all agencies which use computers should have a software compliance officer once they grow beyond a certain size and that the officers would be obliged to carry out an audit of the software and programmes on all the computers and the number of programmes for which the agency has valid licences? One needs a benchmark of what is legally held by a company before one can start accusing it of having illegal copies.
We are putting this provision into law but I am worried that the law will not then be operable.
We are widening the debate to the issue of remedies, penalties and enforcement. Part IX outlines the remedies available. There was a debate on this issue last year in the course of dealing with the short Bill. The basic approach of the Government to the enforcement of copyright and related rights is that it will be most effective if it relies primarily on the interests of the authors, their representatives and other rights holders to take action in civil law against infringers.
The Bill provides a strong regime of civil remedies designed to facilitate rights holders. That is its fundamental aspect and it has been supported by rights holders. In relation to this area, the BSA and others have made submissions over a long period and I and my officials gave much time to this issue. The software industry is economically important and the Government is anxious that there is a strong regime of protection in place. The regime of civil remedies is supported by a reformed and strengthened system of criminal offences and penalties. This involves fines of up to £100,000 and five years imprisonment on conviction. The approach is one of strong legal protection and then it is up to the rights holders to take action to protect themselves.
Large companies have a duty to be compliant as well. They might well put an officer in charge of this area, particularly when the legislation is passed.
Does a copyright owner——
I do not think the Deputy is seriously suggesting that we establish computer police.
Has the Minister given any consideration to powers of search and seizure and will the Garda Síochána have such powers?
That is provided for in the Bill. They are fundamental issues.
I assume there is no power for the copyright holder to enter a premises to challenge somebody with having licensed one copy of a programme but copying it 50 times for use on the company consoles?
They would have powers to obtain a search. There are strong powers and they will be discussed at length——
At some stage. I realise that is included.
Perhaps they are too strong in some cases.
There is a whistle blowers dimension to this involving, for example, an employee who tips off people that others are copying large amounts of material.
There is a whistle blowers dimension, which is similar to what Deputy Rabbitte proposed.
Section 83(1) states:
The copyright in a work is not infringed by the making of a transient and incidental copy of that work which is technically required for the viewing of or listening to the work by a member of the public to whom a copy of the work is lawfully made available.
Will the Minister outline an example in that regard?
The exception in section 83 is designed to deal with situations which arise or may arise regarding the dissemination of works via the Internet or other such medium. Given the nature of the storage of works to be read or accessed for approved use, this provision is a practical necessity. It is not intended that such copies could be used for any purpose other than the legitimate purposes allowed under the Bill or under licence of the copyright owner.
Section 83 is necessary in the context of section 39 which creates a "making available" right covering, inter alia, the making available of works through media such as the Internet. The Department considered that this exception in section 83 is permissible under Article 9.2 of the Berne Convention, Article 13 of TRIPs, Article 10 of the WYPO Copyright Treaty and Article 10.1 of the EU Rental and Lending Directive.
I do not understand the provision. Does it mean somebody can download a copy of something from the Internet in a cyber café or somewhere similar?
These are exceptions. I understand this involves a technical electronic representation on the screen where such a situation would arise.
Is it not the case that if somebody puts something onto the Internet, he or she is waiving copyright because he or she knows the world has access to it? The Internet is different. If somebody puts something on it, the idea is that he or she wants it widely disseminated.
I understand what is on the screen is a copy in itself. It is a technical copy.
The provision states copyright is not infringed by the making of a transient copy. Is that what is meant by a transient and incidental copy? A copy means that one has something in one's hands.
Does it relate to Internet sites? Is it a portal site, for example, where the Irish Independent has its copyrighted masthead on the Internet and it is made available to the public?
The copy on the screen——
The picture one is looking at?
Yes. It is the picture on the screen.
It is transient.
It is required for the viewing of or listening to the work.
If one dips into it for a minute, an hour or five hours——
Yes. The copyright is not infringed
It is not infringed as long as it is only the one on the screen.
That is right. It is not infringed if it is transient or incidental.
It is transient because the image itself is transient. It is electrical impulses.
Perhaps the provision should state transient and incidental image rather than copy. The term copy implies that it is pulled down.
Is it the case that some of these transient and incidental copies could also be stored for a limited period on the hard drive of a computer? They would be incidental but they may not be transient. Is there a limit on the time for which they can be held on a hard drive?
That is a valid point and the issue of the storage of information is being dealt with in the copyright directive.
How do we deal with it in the Bill? Do we wait for the copyright directive to be issued?
It is described as a holding measure.
This is a holding measure?
It is transient.
It is a case of "now you see it, now you don't".
Is it the case that a copy of a work can be held indefinitely if it is incidental or should it be wiped straight away?
My advice is that it should be transient and incidental. We would prefer it not to be one or the other. It is a holding provision in the Bill, subject to further work being done on the copyright directive.
Is the Minister saying that people cannot store this type of material on a hard drive at all?
There will not be legislation to cover that situation. I understand there is not any legislation covering much of this area at present with regard to the Internet. Technical copies make the machine work in such situations.
I am not happy about this. Even if technical copies make the machine work, is it the case that it is not possible to hold such information for any time? What does transient mean? Is it a minute, two minutes, five minutes, 30 minutes or ten days? Some material can be stored on a hard drive.
Then it is no longer transient. It is permanent.
I am trying to figure out the type of copies to which the Deputy is referring.
I am trying to do the same.
The image ceases to be transient once it is copied or recorded. Electrical impulses create an image as one views an Internet site. It is transient because it has no permanence. It is only electrical impulses recurring on a millisecond basis. However, it becomes permanent when it is copied.
Is the purpose to protect somebody who is trawling, brings up an image on screen which is covered by copyright and it is obvious who has made a hit on the site? The debate is becoming technical but is the provision designed to protect people in cases where they unknowingly hit a site where a picture is covered by copyright and they could get a bill in the post?
I suggest the Minister of State could return to us with more detail on this the next day.
I will. We are getting into hugely technical areas. I would be glad to return to this. I will clarify some of the points and give the committee further information on our return.
I propose we adjourn as it is 5.30 p.m.. I thank the Minister of State and his officials, Mr. Thompson and Mr. Rutledge, for their attendance. As was agreed at the start of today's meeting, we will meet on Tuesday, 8 February.
It says Tuesday, 15 February on the top of our list.
We have already agreed to meet on 8 February. Have members had an opportunity to consult their diaries in regard to the circulated list?
Our party tends to have its parliamentary party meeting on Wednesday mornings, although I cannot say for definite there is one on 16 February.
At the start of the meeting, I circulated the list to give members an opportunity to see if the dates suit their diary. I ask members to let us know as quickly as possible which dates suit them. Our difficulty is the availability of rooms. I am sorry I must ask members to return to us as quickly as possible but this matter is outside my control. I confirm we have agreed to meet on Tuesday, 8 February, in room G5 at 2 p.m. to resume our consideration of the Bill.
Will we then have an ordinary meeting at 5 p.m.?
Yes, the meeting will be from 2 p.m. to 3.45 p.m.. I thank members, the Minister of State, his officials and the secretariat.