Copyright and Related Rights Bill, 1999: Committee Stage (Resumed.)

SECTION 83.
Question again proposed: "That section 83 stand part of the Bill."

I would like to follow up on a question raised by Deputy Stanton, in particular, on transient and incidental copies. The term refers to copies of copyright protected materials which are made by computers so that they can be used to access copyright works and one obvious example is the copy of a work which appears on the screen image - I believe I said this last week - simply the image itself in order to allow it to be read. Another example is the electronic representation of a work which would be created in the short-term memory of a computer so that it can be called up on screen. Such an electronic representation would count as a copy for the purpose of the Bill. Other copies, such as those printed off from a computer or those down loaded on to its hard disc, would not be included in the definition of transient and incidental for the purpose of this section.

We are getting into a highly technical area. I have other information on this and with the Chairman's agreement, I would be more than happy to share the advice I have with any Deputy. I am concerned that if we go to the heart of every section we will be here until this time next year. I am not trying to stifle debate but I will offer any information I have, which is more than that which I have just shared with the committee, on any of the detailed and technical matters coming up.

I take the Minister's point. This section has caused much difficulty and I do not want to add to it in any way. It is, however, important we are clear on what is intended by the measures we are putting forward. I thank the Minister for the help he has given us in defining what he understands to be transient and incidental copies. I believe I am right in interpreting what he said to mean copyright is not infringed if these are made purely for the purpose of allowing the work to be viewed on the screen. I am happy to let that rest.

Question put and agreed to.
Section 84 agreed to.
SECTION 85.
Question proposed: "That section 85 stand part of the Bill."

On section 85(2)(a), what is meant by a "direct record"? Will the Minister give us examples of what he means? This has been raised by people who are concerned about it.

That would be a tape recording.

It reads: "that the record is a direct record of the spoken words". Is the Minister saying that direct record is a tape recording of the spoken words?

It is not a transcript or written down.

Question put and agreed to.
SECTION 86.

I move amendment No. 68a:

In page 58, subsection (1), line 39, after "any" to insert "reasonable".

Part of the problem here is that section 86 reads: "The reading or recitation in public by one person of any extract.....". It does not define the size of the extract. By including the word "reasonable", it helps narrow it down a little.

I am happy to say I accept the amendment.

Amendment agreed to.

Amendment No. 68b is in the name of Deputies Owen and Stanton and amendment No. 68i is cognate. Amendments Nos. 68b and 68c may be taken together by agreement.

I move amendment No. 68b:

In page 59, subsection (2), line 2, after "fixation" to insert "which may be exploited for commercial purposes".

We are seeking to insert after the word "fixation", the words "which may be exploited for commercial purposes". Subsection (2) will read: "The copyright in a work is not infringed by the making of a fixation which may be exploited for commercial purposes.....". We are trying to narrow the circumstances in which this infringement would or would not occur. By inserting "commercial purposes", it allows people the possibility to copy work. Again, we have broadcasters in mind, in particular, radio and television stations.

The Deputy will appreciate that this would narrow it beyond its reasonable requirement. He is right in saying he is trying to ensure the law protects copyright holders. If one takes the non-commercial example of an individual or a tourist recording an artist on the street reciting a poem or whatever, we need to ensure that would be legal. We need to ensure that such a person would not be restricted in using such material, if he or she acknowledges, say, in the case of using the work of an author, that it is the work of that author. The Deputy referred to the term "which may be exploited for commercial purposes". Is it important to also include the option of non-commercial purposes? It would be difficult to justify drawing a distinction between the two. To do so, would be to favour commercial use over non-commercial use. The point raised by the Deputy will be dealt with by leaving the wording as it stands.

Did the Minister of State say that to do so would be to favour non-commercial use over commercial use or the other way around?

The effect of the amendment would be to restrict the exception in the case of recording of broadcasts and cable programmes to fixation broadcast and cable programmes services of a commercial nature. We should make sure that this section applies to commercial and non-commercial fixation broadcast and cable programmes.

This point was raised with us, but I am not sure the Minister of State has fully explained this matter. It was put to us that the terms of subsection (2), which allow the fixation, etc., of a reading or recitation, are extraordinarily broad and at the very least this amendment should be included to ensure that if a copy, which would otherwise be an infringing copy, is made under this section and subsequently sold, it should be an infringing copy. I am in favour of exemptions being made in certain cases for once off copies and where people want to use a work but we must guard again exploitative——

That is covered in section 86 (3). We are allowing for commercial and non-commercial uses. As we have donein the past in other sections, if one makes copies of a work and sells or rents it, that would constitute an infringement of copyright in the work.

I take it the phrase "made under this section" means all of section 86. The amendment reads, "... subsequently sold, rented .... or exposed ... it shall be treated as an infringing copy for those purposes and for all subsequent purposes". Why did the association consider that wording did not cover the point it made? It does not mention subsection (3). It makes the point that subsection (2) is against Article 11ter of the Berne Convention. I did not take out my copy of the Berne Convention.

The Deputy should never come to a committee meeting on this Bill without it.

It is the most popular book at my bedside at the moment.

I had quite a few clinic cases about it at the weekend.

I had some too. The convention states that authors shall enjoy the exclusive rights of authorising the public recitation, including such public recitation by any means or process, any communication..... By allowing people to perform something in public by having only one copy of it, that is breaching Article 11ter of the convention.

We can all quote selectively from the Berne Convention. Article 9.2 allows for exceptions in certain situations. We consider the exceptions listed here fall within Article 9.2 of the Berne Convention.

Is the Minister of State saying that subsection (2) allows for exploitation for commercial and non-commercial purposes of the readings or recitations that are mentioned in subsection (1)?

Yes, commercial and non-commercial purposes.

Amendment, by leave withdrawn.
Amendment 68c not moved.

I move amendment No. 69:

In page 59, subsection (3), line 7, to delete "and" and substitute "or".

This is a technical amendment.

Amendment agreed to.
Section 86, as amended, agreed to.
SECTION 87.

I move amendment No. 69a:

In page 59, between lines 15 and 16, to insert the following subsection:

"(2) This section does not apply if or to the extent that there is a licensing scheme in force providing for the granting of licences to authorise such copying.".

The amendment would restrict the ability of the publishing and scientific communities to disseminate copies of abstracts of scientific and technical articles where licensing schemes aimed at controlling such copying existed. Copying of this nature is particularly advantageous to the scientific community in drawing the attention of scholars to the work of their peers. I am not in favour of accepting this amendment at this time as it would be inconsistent with the balance I wish to strike in the Bill between the rights of the users of such material and its publishers.

Members will appreciate that it is implicit in these comments and from what I said during the debate on the Bill in the Seanad that I regard the role of scientific and technical copying as highly sensitive. Consequently, I will keep this balance under active review and not hesitate to propose legislation to adjust it should it prove necessary. For the present I would prefer not to accept this amendment. We are talking about experts in the scientific area who would prefer if their works were made available in this way. Effectively, the section deals with the reality and it is a practical measure.

I thank the Minister of State for his explanation. I tabled the amendment to tease out the issues raised. I am not be in favour of restricting the scientific community from sharing its work in any way. The Minister of State mentioned copies of abstracts of articles. An abstract is often all that a person requires. An abstract can be quite detailed and technical. If a person can get a copy of an abstract he or she may not need to get a copy of the body of that work. An abstract can contain the main points of a work. To strike a balance, the amendment seeks to ensure that if a licence is available, a licensing scheme should be used. I would be interested to hear the professional advice the Minister of State got on this matter. While I am not too concerned whether this amendment is accepted, I would like this matter teased out.

I appreciate that in some part of Bill there is a case for a licensing scheme, but the experts in this area want their works to be made available. The Deputy was correct that the section deals with abstracts. One could argue if abstracts were made available, some people might be interested in only that part of a work, but others would be interested in the more detailed work. From the point of view of users and those of us who would like to see as many exceptions as possible included, this section is a good measure and should be left as it is.

I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.
Section 87 agreed to.
SECTION 88.

Amendment No. 138 is cognate on amendment No. 70 and the two may be taken together by agreement. Is that agreed? Agreed.

I move amendment No. 70:

In page 59, subsection (3)(a), line 33, to delete “private” where it firstly occurs.

On Report Stage in the Seanad I agreed to amendments to remove the word "private" before that of "research" where it occurred throughout the Bill. These two sections appear to have been overlooked in that regard. In the interests of consistency, this term should be removed from the above section. It is a purely technical amendment.

Amendment agreed to.
Section 88, as amended, agreed to.
NEW SECTION.

I move amendment No. 71:

In page 59, before section 89, to insert the following new section:

"89.-(1) In this section-

'artist' means the author of an original work of art;

'artists resale right' means the right of the artist granted in this section;

'artist's resale royalty' means the percentage of the proceeds of the sale the work to which the artist is entitled under this section;

'original works of art' means works of graphic or plastic art, including pictures, paintings, collages, drawings, engravings, prints, etchings, lithographs, sculptures, tapestries, ceramics, glassware and photographs, and copies of works of art which have been made in limited numbers by or with the authority of the artist, and 'original work of art' shall be construed accordingly;

'registered licensing body' means a collecting society representing artists which is registered under the provisions ofPart III, Chapter 8 of this Act;

'sale price' means the price at which the original work of art is sold, exclusive of all taxes and seller's commission;

'the intermediary' means the agent or agency acting as intermediary between the purchaser and the seller, such as organisers of public sales and auctions, art galleries and in general, any dealers in works of art;

'the seller' means the person or persons entitled to receive the sale price of an original work of art.

(2) The author of an original work of art shall, subject to the provisions of this section, have the right to receive a percentage of the proceeds of all sales of the work subsequent to the first sale or transfer of ownership thereof.

(3) The artist's resale right shall be inalienable and incapable of waiver.

(4) The artist's resale right shall apply to all acts of resale of original works of art involving sellers, buyers or intermediary art market professionals, such as salerooms, art galleries, and in general, any dealers in works of art, which take place from the date or enactment of this legislation.

(5) (a) the artist’s resale royalty shall be payable by the seller within three months of the date of sale of the original work of art.

(b) the levying and payment of the royalty to a party specified in subsection (9) shall be the responsibility of the person who engages in the sale of, or who serves as the intermediary for, original works of art.

(6) (a) The amount of the artist’s resale royalty shall be determined, from time to time, by the Minister.

(b) No artist’s resale royalty shall be payable in respect of a sale where the seller shall prove that the resale price of the work does not exceed the purchase price paid by the seller.

(c) No artist’s resale right shall apply to the particular situation of art galleries which acquire works directly from the artist, providing the resale takes place within three years of the acquisition.

(7) The artist's resale right shall endure for the same period as the copyright term.

(8) The artist's resale royalty shall be payable to the artist, and after her or his death to any of the following parties: the artist's personal representative; the beneficiary of the artist's resale royalty under the will of the artist, it having been admitted to probate; the heir at law of the artist in the event that the artist died interstate and no grant of administration to her or his estate has been extracted.

(9) It shall be a sufficient discharge of the seller's obligation to pay the artist's resale royalty if the seller or the intermediary shall pay the same to a registered licensing body or to an agent appointed to act on behalf of any parties specified insubsection (8) hereof.

(10) In the event that the person entitled to receive an artist's resale royalty cannot after reasonable enquiry be ascertained or identified by the seller of an original work of art, and there is in existence no registered collecting body, then the amount of the royalty shall be held in trust by the seller for the person entitled to receive it for a period of three years from the date of sale, and thereafter the obligation to pay the artist's resale royalty shall be at an end.

(11) (a) The seller of an original work of art shall be obliged, upon receipt of a request in that behalf, to furnish to any of the parties specified subsection (8) or (9) hereof, details of the sale price of such original works of art and the date of sale of the same.

(b) An agent or representative of sellers of original works of art and an organiser of a sale of original works of art shall be obliged, upon receipt of a request in that behalf, to furnish to any of the parties specified in subsection (8) and (9) hereof, details of the sale price and date of sale of all sales of original works of art conducted the preceding year in which the party requesting the information has an interest. In the event the artist’s resale royalty has not been paid within the period specified in subsection (5), the agent shall be also obliged to provide the name and address of the seller on receipt of a request for such information.”.

This amendment involves the insertion of a new section dealing with artists' resale rights. Many countries in the European Union have enshrined artists' resale rights in legislation and eight out of the 15 members states actually implement such legislation. I am informed that the United States is considering taking this route. In that event, Ireland would be one of the few countries in the developed world which does not recognise the work of artists.

Members are aware that artists create original works. We are not seeking action in respect of the sale of such works but it should be noted that artists can often only make money on the sale of their original works. If such works increase greatly in value and are resold a number of times, the artist who created the work initially does not receive any remuneration from those resales. That is inequitable and we should place on the Statute Book a provision to enshrine artists' resale rights in law in this country.

This matter only impacts on a small number of artists at present but the Irish art market is growing. However, the provisions contained in the amendment would, in a short period, prove to be of major help to artists who, in later life, despite the fact that their paintings can increase dramatically in value, may find themselves in dire financial circumstances. An artist who is possibly living from hand to mouth at present may see his work increase dramatically in value in a number of years but he will gain nothing as things stand. The only people who gain at present are the owners of art galleries, dealers, speculators and those who market the work.

Given that artists' resale rights are part of law in France, Germany and Denmark, we are anxious that they should also be placed on the Statute Book here. The Minister of State indicated previously that only wealthy artists would qualify but if one follows that train of thought one could also say that there should be no copyright in music because only wealthy musicians would qualify. Is the Irish market large enough to justify artists' resale rights? Not yet, but if we encourage artists, as previous Governments have done, the market will develop in the future. In my opinion, the inclusion of the new section would provide encouragement to artists in itself.

I am anxious to hear the Minister of State's comments on the amendment. In my opinion the amendment, or at least the principle behind it, should be accepted.

I support the amendment. As Deputy Stanton stated, artists are not endowed with a great deal of money in the early stages of their careers. I am familiar with the case of an artist who was short of cash and who sold one of his works for £35. In a short period, he discovered that it had been resold for £350 and later that it was sold again for an amount in excess of £1,000. I accept that these are not huge amounts in art world terms but if the man in question had obtained the final price rather than the paltry initial sum of £35 he would have been much better off. He was obviously abused by someone who knew that the work was quite valuable but he could do nothing about it.

Artists, by their nature, are probably not aware of how to value their work. However, the person who bought the painting in this case obviously recognised its value. The artist felt that he should have been able to claim a percentage of the eventual price paid for the work after a period of, for example, ten years which would have supplemented his income. We should give consideration to protecting such people, whose genius may not stretch to managing their financial affairs, from exploitation.

I hope the Minister of State will respond positively in respect of this new section. A strong case in favour of artists' resale rights was made during the open committee hearings by the Artists' Association of Ireland and its representative, Ms Coffey. In my opinion this matter involves an element of justice. In 50 countriesdroit de suite are available under law. Of those countries, 11 are EU member states. The UK, Austria, Holland and Ireland are out of step with their European counterparts.

I accept that this matter remains under discussion but is there not a case for us to lead the way? Far be it from me to remind the Minister of State that it was Charles Haughey who has been credited with assisting artists and writers by means of the country's tax regime. I am sure Mr. Haughey owns many paintings and if he knew that some of the people who painted them were down on their luck he would be willing to ensure that they were given a helping hand.

Is the Deputy suggesting that adroit de suite regime operated during Mr. Haughey’s time in office?

No,droit de seigneur was at the forefront then.

Deputy Boylan referred to the case of an artist with whom he is familiar. We are aware that an Irish artist sold a work in 1968 for 150 guineas or £157/10/0. It was resold in 1991 for £8,000. Allowing for inflation of 803.9%, the increase in real terms was 4,275% or £6,734. Meanwhile, when the work resold in 1991, the artist was old, unable to produce work and living in a precarious financial position. Becausedroit de suite does not exist in Irish law, he did not benefit at all.

Clearly artists benefit when they sell an original work of art but inequities exist. For example, if I wrote a book to which I owned the copyright, I would continue to benefit financially into old age on each occasion the book was republished. The Bill makes no reference todroit de suite and I understand that at European level Ireland is extraordinarily dismissive of this issue. We seem to have adopted the attitude that because this might affect only a few wealthy artists we can cast it to one side. That is not true. Given this country’s artistic and cultural background, I am disappointed that officials negotiating at European level might be instructed to take such a line. The impression is being created that, at best, Ireland is abstentionist on this issue and, at worst, it wants to destroy the notion of droit de suite.

The Minister of State should not dismiss the amendment lightly. If he believes that further discussion is required, we would be open to a minor amendment stating that the provision would not come into force until certain events had occurred. I do not believe the Minister of State will return to the committee in two years to place the notion ofdroit de suite on the Statute Book. We are going to get one chance at this and I hope the Minister of State takes it.

I thank Deputies Owen and Stanton for taking the time to put forward this comprehensive proposal. Some of my answers have already been given by the Deputy, one of the strongest of which was that this is a very live issue at EU level.

There are arguments for and against this proposal and I have looked carefully at my position and that of the Government, which is similar to that taken by my predecessor. It is not as simple as taking a negative position against artists. The Deputy rightly said that Fianna Fáil introduced favourable tax benefits for artists so the argument that we are in any way opposed to the development of artists and their creative talents is false on that basis.

I will outline some of the counter arguments todroit de suite including the fact that, as the Deputy pointed out, it would benefit only a small number of successful artists.

I was repeating the Minister of State's words. I do not agree with that point.

The Deputy's words are on the record. The artists involved would have a strong secondary market for their work and the imposition of such a levy could damage the infrastructure of the Irish art market which would not be to the advantage of people employed in that market or to artists selling their work through it. In an Irish context, adroit de suite would represent an additional bureaucratic burden on trade which would do little more than recover its collection costs. These are the kinds of arguments made - that one could actually reduce the number of sales through the professional trade and do damage to the very people one is trying to help. It is a very fine line. This is not a black and white issue nor is it similar to the situation involving authors. This was the position adopted by my predecessor three or four years ago when proposals for an EU-wide harmonised artists’ resale right were revived. I have been presented with no convincing arguments domestically or at EU level which persuade me to take a different position.

However, the Deputy is correct to refer to the ongoing debate at EU level which is approaching finality. Details are emerging which I would leave myself open to accept. I share that position with the committee. It is not possible to include adroit de suite in the Copyright and Related Rights Bill for a number of reasons. I thank the Deputy for putting forward this proposal and this kind of framework will help us in the future to deal with this issue. However, no serious consideration has ever been given to the legislative and administrative requirements for an artists’ resale right in Ireland at official level and this would have to be done before enacting legislation. In other words, much of the preparatory work would have to be done.

The most important point is that the proposal for the EU directive ondroit de suite is at a very advanced stage of consideration. If and when it is adopted, the directive may require that an artists’ resale right be introduced here. However, the directive’s text is still under negotiation in an effort to arrive at a compromise agreement on a proposal which has presented difficulties for several member states, including some which already operate a droit de suite domestically. It would be premature to enact legislation for an Irish artists’ resale right which might not conform with the requirements of the directive, if and when it is finally agreed.

I thank the Deputy for proposing this amendment, but it is premature. We are in the middle of a debate at EU level and COREPER will discuss this issue tomorrow. In light of the fact that at EU level, the Government, myself and my officials are engaged in trying to deal with this issue, and leaving aside all other arguments, I ask the Deputy to reconsider the proposal. A compromise may emerge. The Deputies have been following this debate and have received briefing documents. At EU level we are looking at thresholds, percentages of the increased value and so on. The Deputy was correct in her analysis of the position we have taken to date which is similar to that taken by the previous Government and there are legitimate arguments on both sides. However, a compromise may emerge which will meet my requirements and the Government's concerns. As in all situations, compromise at EU level will not satisfy us on all fronts.

If we are to deal with this issue it may be necessary to introduce separate legislation.

That is it.

There is no related legislation which could be amended to cover what is being suggested. In the event of legislation being put in place to deal with this issue, I presume it would be possible to cover the intentions of this amendment in that Bill. However, it would not be wise to do so in the absence of final legislation to deal with this issue.

Where does the artist come in if I buy a painting for £500 and only realise £200 on its resale? That is the opposite of the argument being put. It is fine when the——

The artist was lucky on day one.

This is part of the issue which would be debated in the course of legislation put before the House.

I wish to respond to some of the arguments put forward by the Minister of State. If we take the argument that only a small number of wealthy artists would benefit, we could also say the same for musicians, writers and so on. With all due respect, this argument does not hold water. There is also the issue of the strong secondary market. We do not have a strong secondary market at present but this provision would assist the development of such a market.

It has also been stated that this provision would damage the infrastructure of the art market, but how will that happen? Is it doing so in other countries? I do not think so. Who is the Minister of State trying to protect? Is he trying to protect wealthy art dealers? He also stated that this measure would give rise to additional bureaucratic costs and so on. However, the costs are quite minimal and the measure would be self-financing when it is up and running.

In France, two-thirds of thedroit de suite go to living artists. The Minister of State said that the EU is going to make some decisions. What is his position and that of the Government on this issue? We do not know. Sometimes we are told the Government is against it. What is the Government’s position - is it for it, against it, or is it sitting on the fence?

Deputy Daly made the point about new legislation. However,droit de suite is incorporated in copyright legislation in other countries and this is the place for it. Will the Minister of State compromise with us and state that an enabling provision will be introduced? We would like to see it included somewhere on the Statute Book as this is very important. There are floors and ceilings involved in this issue so the scenario given about the fall in prices would not arise.

I am disappointed that the Minister of State is dismissive of this proposal. I would like to see him take the lead in Europe and perhaps he will tell us what the Government's definitive position is on this issue in Europe.

Isdroit de suite more common to non-common law countries? For instance, is it the case that it has not been incorporated in copyright legislation in Britain, Ireland, America, New Zealand and so on? Would it constitute a major shift for us along continental lines?

I come back to the Berne Convention. Can the Minister of State say why he quickly falls back on the convention in so many other areas as a reason for not accepting amendments? Let me remind him of Article 14ter ["Droit de suite" in Works of Art and Manuscripts: 1. Right to an interest in resales; 2. Applicable law; 3. Procedure]. It is quite clear that the Berne Convention envisaged countries being able to havedroit de suite in their law. Article 14ter subsection (1) states:

The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.

Subsection (2) states:

The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.

It is quite clear that the drafters of the Berne Convention intended to leave open the possibility and the right of countries to bring in legislation. I am disappointed with the Minister's reply. I accept that the matter is still under discussion. However, I have a copy of a motion passed by the European Parliament in 1996. This is not a new issue. It has been tossed around, and we have been given a history of what has happened in relation to this. My reading of it is that this issue has become a bargaining chip between countries. Ministers agree to back other Ministers if those Ministers will back them on something that is important to their country's interests. There is an allegation that the UK has been leading the opposition because of its £2 billion art market and is afraid that ifdroit de suite comes in the art markets might move somewhere else. One of the arguments is that introducing droit de suite might drive the centres of art marketing out of the European Union. I understand that an assessment was done of what droit de suite would cost if it were brought in in the UK and what it would cost for people to transfer all their art to Japan or somewhere else to sell it. By far the cheapest option is to pay under droit de suite rather than pay the costs of packaging and transporting works of art abroad. That knocks the argument on its head.

The Minister said it would be an administrative nightmare and very difficult to organise. I accept that argument might have been valid prior to computerisation and good systems of bookkeeping, telephones, faxes and so on. However, it is not a good argument nowadays. It is possible to put onto a computer exactly what pieces of art are being sold, where they are being sold, who the original owner is, and for it to be followed around the world. Given that police seem to be able to follow stolen works of art, we could use some of their expertise to follow works of art that are being sold.

The Minister is avoiding telling us why exactly Ireland has been fairly intransigent on this issue and does not seem to be coming across in a positive way in the discussions. Ireland has changed its position from one of voting against to one of abstention. I gather the draft directive is now only two votes away from achieving a majority. However, when it gets to that point, it slips back again. Mr. Schro1der bartered it for a car recycling directive and so on. This is all folklore and anecdote. However, anybody who has been a Minister knows that such things sometimes happen in negotiations at European level. We are asking the Minister to take a more gutsy and more principled stand on this, to put Ireland's position firmly on the table and say we are willing to bring indroit de suite here. He can do it by introducing this legislation. He can ask his officials to include another subsection at the end to say that this section 71 will come in by way of ministerial order. I do not want to let this go because we will never revisit it. I intend putting it to a vote.

I want to draw the attention of the Minister to the point on which Deputy Owen intervened, that is, Article 14ter of the Berne Convention. We have had several examples where, when the force of argument seemed to be in support of amendments, the Minister fell back on the Berne Convention to support his contention that he was not permitted by implication to accept the amendments. It seems that Article 14ter is very clear where it states:

The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.

It is interesting in the context of at least half a dozen things that have gone before that the Minister's last line of defence is the Berne Convention. It is not clear why we are signatories to the convention in this case but do not seem to feel obliged to implement its terms.

I would also like to ask the Minister about the attitude of the Department and the Minister for Arts, Heritage, Gaeltacht and the Islands. The Minister has said that there are legitimate arguments for and against bringing indroit de suite. There is a welter of argument to support either position. My recollection is that the Department of Arts, Heritage, Gaeltacht and the Islands supports the transposition into Irish Law of droit de suite. Is that still the position? How are we managing to get by in Europe sitting on the fence on this? Are we going to take up a position on it if there is a discussion at COREPER tomorrow? What are the Irish Permanent Representative’s instructions in this regard?

It is also my recollection that the advice from the Office of the Attorney General was to the effect that there are no constitutional problems about the artist's resale right being introduced into Irish law. In that sense, Deputy Owen has a compelling point when she says that now is the time to seize the opportunity when we are putting through major legislation in the intellectual property area. It is unlikely, in the nature of things, that any Government will be greatly moved to give priority todroit de suite in the aftermath of the enactment of this Bill. There are many things the Government will be concerned about, but droit de suite is not one of them. I do not know whether the Minister is persuaded. What will happen if there is a directive in a few months’ time to the effect that for reasons of the Single European Act, the Single Market and so on, we have no choice other than to import droit de suite into Irish law, whatever we think about its merits?

There is something in what Deputy Lenihan says about the two different systems of law in terms of the Continent and Ireland. However, if we are confronted with a directive in a few months' time, what are the compelling arguments that would cause us to take a stand on it? Is the Minister saying that only an insignificant number of artists will benefit from this, and that they tend to be the better off artists? Is that the argument? Is he saying that the collection agencies will get the lion's share of the royalties that will accrue and that only a minority stake will revert to the original artist? I would like to hear more in terms of the Minister of State's justification for passing over it, having regard to everything that is happening in the wider environment and especially having regard to the significance he has attached up to now to the Berne Convention.

We should not dismiss this issue lightly; we should lead with it. We are talking about a small group of people who, by their nature, are open to exploitation. They are geniuses and we should protect them and be seen to do so. I cited a case. While we are not talking about a great amount of money, it would be significant for the person concerned. It is difficult to manage this business. The Minister of State should talk to his colleague, the Minister for Agriculture, Food and Rural Development, Deputy Walsh, who could advise him on the complex issue of traceability, which works extremely well.

There are a few ex-art robbers.

They are certainly not interested in following anything.

I would not use the excuse that it is difficult to manage this area as a reason for not introducing the legislation outlined here by Deputies Stanton and Owen. We owe it to these people to do that. We consider ourselves to be a cultural nation. We have young people with great skills but, if their work cannot be protected, they will not be able to develop their skills and businesses from which they hope to make their livelihood. Such people are vulnerable at the early stages of their career. Ruthless people will approach them when they are at their lowest and offer them a paltry sum for something that is worth an awful lot more. The Minister of State should give serious consideration to this matter.

Does the Minister of State know if Tony Blair wrote to all Leaders of the member states in January 1999 at the beginning of Germany's Presidency of the EU asking them not to support the directive? Will he confirm if we complied with that request to get issues on the reorganisation of CAP included instead? Was there that kind of lobbying?

Deputy Owen is right. Prime Minister Blair wrote to his counterparts in the European Union and my UK counterpart, Helen Liddle, put that point to me. Lobbying goes on between Ministers at various levels.

Tony Blair wrote and asked the Leader of this country not to support it?

My understanding is that there was communication between Prime Minister Blair and the other Prime Ministers, including the Taoiseach.

It was at a very high level.

This is an important issue for the UK. Given their art market, they have arguments on this issue.

I will deal with the questions put. I will start with Article 14 of the Berne Convention. A number of Deputies have asked why our interpretation of the rights of others here is different from elsewhere. Article 14(2) of the convention states, "The protection provided by the preceding paragraph may be claimed in a country of the Union only if legislation in the country to which the author belongs so permits, and to the extent permitted by the country where this protection is claimed.". Effectively, that leaves it optional for us to proceed or not to proceed.

As do many other sections that the Minister of State has taken on board.

If that did not exist, we would have to proceed on this. The strongest argument I have in this regard is that discussions on this issue are at a very advanced stage at EU level.

The Deputy asked me the Government's position on this issue. The Government's position is similar to the position of the previous Government, which favoured opposing it. I have given the reasons for that. We have a favourable tax regime for artists and adopt a positive approach towards them. The commercial side of the debate is important. It is argued that the market could be driven outside the EU to Switzerland or the US. That argument still holds where there is nodroit de suite.

I wonder how many artists enter the secondary market. We could go into all sorts of details on this but I outlined the reasons we opposed it and one was the bureaucratic nature of the collecting costs.

Deputy Rabbitte asked me the positionvis-à-vis the COREPER meeting. It will have to report back to me as Minister of State. My position and instructions are to consider this package positively in the context of what is coming through. Detailed proposals are coming through on the percentage of the increased value and on thresholds. I will re-examine this matter when it comes back to me. If a reasonable compromise emerges, I will examine it. The previous Government would have taken a similar position in terms of agreeing to examine a reasonable compromise that might emerge in this regard.

We must protect rights holders in the art world and the music industry and we must also protect the interests of consumers. If some artistic works were driven out of the EU market into the US market, the consumer would have an interest in that. I cannot accept this amendment. I have informed the Deputy of the up to date position and I will keep her informed of developments at EU level.

I appreciate the Minister of State's position, but we are concerned this issue may not be revisited for a long time. I would be pleased if he accepted the amendment on the basis that a subsection could be included to enable him to enact it or amend it at a future date. In that way it would be included in the legislation and it would be up to the Minister to——

I am informed that may be unconstitutional.

There are one or two other small points. Deputy Lenihan mentioned non-common law countries. We are bringing in other provisions from non-common law countries such as the moral rights, paternity rights and so forth and we amend legislation in this area all the time. The argument in that regard does not hold water.

An artist in my area, who is not brilliant but pretty good, is concerned that when he dies there will be nothing to leave his children. The wealth accumulated through work by other people will pass on to their families on their death. When this artist dies, the value of his work will increase dramatically because his work will be limited. When he dies, his children could see his work being sold for enormous sums but they will not be able to derive any value from that. The children of the author of a book are in a different position. They are entitled to royalties from the author's work for 70 years.

The Minister of State has made a political decision to go againstdroit de suite at this time. While he made the argument that the art market might be driven to Switzerland, the United States and so forth, how can France, Germany other countries in the EU operate this system and their art world does not seem to have collapsed? If they can operate that system, why can we not do so? The Minister of State is making a political decision on this and we will put this amendment to a vote.

I want to knock on the head the Minister of State's argument relating to the Berne Convention. He read out Article 14(2), which I also read. Does he want me to read out all the other Articles of the convention that the Government has brought into law, all of which state it shall be a matter of legislation for the countries of the Union to determine the conditions and without that legislation these conditions shall not apply and so on. Almost every Article the Minister of State is taking on board contains a provision for introducing enabling legislation. The Minister of State should not try to diminish our understanding of this by claiming he is falling back on Article 14(2) and that legislation is required. This is why we are doing so.

We will be pressing this amendment to a vote. I have seen much legislation which contains sections which do not come into force without a ministerial order and where positive action on the part of the Minister is required to bring them into force. The Minister of State should not try to tell me that this is unconstitutional because, if it is, then most of our legislation is unconstitutional. He could include a provision that section 71, or whatever, of the Bill has to be enforced by way of a ministerial order. He can do so until the European Heads of State get their act together and make a decision on this matter.

Amendment put.
The Select Committee divided: Tá, 6; Níl, 8.

  • Barnes, Monica.
  • Boylan, Andrew.
  • Owen, Nora.
  • Perry, John.
  • Rabbitte, Pat.
  • Stanton, David.

Níl

  • Ardagh, Seán.
  • Callely, Ivor.
  • Daly, Brendan.
  • Kitt, Tom.
  • Lenihan, Conor.
  • McGuinness, John.
  • O’Flynn, Noel.
  • O’Keeffe, Batt.
NEW SECTION.

I move amendment No. 72:

In page 60, before section 93, to insert the following new section:

"93.-(1) Subject tosubsection (2), it is not an infringement of the copyright in a sound recording, broadcast or cable programme to cause a sound recording, broadcast or cable programme to be heard or viewed where it is heard or viewed -

(a) in part of the premises where sleeping accommodation is provided for the residents or inmates, and

(b) as part of the amenities provided exclusively or mainly for residents or inmates.

(2)Subsection (1) does not apply in respect of any part of premises to which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed.”.

The Copyright Act, 1963, contains exceptions whereby sound recordings and television broadcasts may be played or shown in certain premises, that is, hotels and prisons, without infringing copyright.

I am advised that this amendment cannot be discussed now as it has already been discussed with amendment No 4.

The Minister of State undertook to come back to us on subsection (2) because points were raised about the exemption "where there is a discrete charge made for admission".

I ask the Minister of State to respond if he has new information.

Following receipt of numerous representations, we considered the subject and came to the conclusion that there is a case for retaining an exception in respect of prisons and hotels on the basis that this would be a minor exception which applies in limited circumstances. I will keep the situation under review, particularly in the context of discussions at EU level on the new directive on copyright in the information society.

We have not advanced our position on subsection (2). The Minister of State should give us his arguments for standing by these two. At my age I do not know much about the night-club industry in this city but I have had representations from a number of the Minister of State's colleagues who asked me to represent their cause here. While I insisted I was not a gun for hire, I agreed to raise it with the Minister. However, I do not have anything to report back to them.

The Minister of State indicated he would ensure the ridiculous position regarding televisions in hotel bedrooms would be changed. We want to make sure it works and that it is not always in dispute. I am not satisfied that a dispute could not arise under subsection (2) which states that "Subsection (1) does not apply in respect of any part of premises to which subsection (1) applies [in other words, the exemption does not apply] where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed”. I do not know if this will cause a problem given the way hotels are built. If a charge is made for admission to one part of a hotel where a broadcast or sound recording is being heard or viewed, could the hotel be charged if music which is played privately in a room is heard outside the hotel? I do not know if this satisfies the concerns of hoteliers. Is this related to the Berne Convention?

We are not talking about the Berne Convention but about the 1963 Act.

The Minister might clarify how and to what this discrete charge will be applied.

How does this charge apply in a guesthouse where a person is charged for the facilities as advertised? If a person watches television in the lounge of a guesthouse, does that infringe copyright laws?

A "special charge" was the language used in the 1963 Act. I made a commitment to look at the word "discrete" but I have not yet received any legal advice. We have dealt with the problem of televisions in bedrooms. It was a mistake that such a problem emerged. The 1963 Act referred to a "special charge". There would be no charge in the situation referred to by Deputy Stanton because it would be included in the service provided.

Deputy Owen is correct that we must get it right and I am determined to do that. There may be a better word than "discrete" which was used in relation to bedrooms. I apologise for not having received a response from our legal advisers but I will come back to the committee as soon as we do. We have dealt with the issue of the bedrooms. Now we have to look at the question of a special, discrete and separate charge. I will come back to the committee as soon as we have final advice.

How stands amendment No. 72?

I propose my amendment with that caveat of coming back.

Amendment agreed to.
SECTION 93.

I move amendment No. 72a:

In page 60, subsection (2)(a), line 34, to delete “or are otherwise” and substitute “and are solely”.

We are talking about the playing of sound recordings for clubs and societies. I agree with the wording "subject to compliance with the conditions specified insubsection (2), it is not an infringement of copyright in a sound recording to play it as a part of the private activities of or for the benefit of a club, society or other organisation”. I am sure most of the collecting agencies and copyright owners and holders would agree with the conditions that a club, society or organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare. That is quite acceptable.

However, the words "or are otherwise" are causing problems. We suggest deleting those words and inserting the words "and are solely concerned" to tighten it up even further. There is concern among copyright owners that this particular section could be subject to abuse and that people could get around the copyright requirements by posing as charitable or educational organisations or otherwise. Much money could be made on the backs of the copyright holders if this is not tightened up. There is also the issue of how this is to be policed, and we dealt with some of that on the last occasion.

Section 93(2)(b) reads: "that the proceeds of any charge for admission to the place where the sound recording is to be heard are applied solely for the purposes of the club, society or other organisation". In many clubs and organisations, the main profit is derived from the bar. If an establishment hosts a function under the auspices of a charity or religious organisation and there is a door charge, and if the proceeds of the bar, which would be quite substantial, and the profits thereof, did not go to the charitable organisations, how will the Minister reconcile the two amounts of money coming in? Does that issue arise?

I am concerned about this section in that I do not know how the Minister proposes to police it and make sure it works. I fully accept the principle that if a club or organisation runs a function with lots of voluntary help, it should not have to pay copyright for the music that is being played. How will we avoid abuse?

It can be argued that this is probably one of the sections where there could be considerable abuses in that discos and large hotels run functions. The same happens with the licensing extension law and clubs can have a certain number of extensions each year and it is open to considerable abuse. We must protect the copyright owners as well in this instance but we do not want something which is so penal that clubs and societies cannot hold functions. The Minister needs to be very prescriptive.

Section 93(3) is very loose. It states that subsection (1), in other words, the exemption, shall not apply in the case of any club where a charge is made and where any of the proceeds of the charge are applied otherwise than for the purposes of the club, society or other organisation. If a club is running a function, there is a possibility that some of the money taken at the door will go to pay the bouncers, an artist who comes in to fill in or a comedian. In order to sell the function more aggressively, they could bring in somebody to perform an act and they could use some of the money they get to pay that person's train fare, send a car for them or an overnight hotel bill. That is encompassed in the word "otherwise". If any of the money collected at the door goes to anything other than the purpose of the club, society or other organisation, one could argue that people have abused it because they are holding a function without paying copyright and are using some of the money to pay special artists who come in.

I would like clarification on section 93(2)(a). Is the Minister absolutely satisfied with the subsection which states: "that the club, society or organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of"? A football club would never be referred to as a charitable club but is it covered by the words "the advancement of religion, education or social welfare"? What do the words "social welfare" mean? It does not seem to cover a football, hockey, badminton or basketball club if they were the club or organisation concerned because their main object is not charitable and they do not come under religion, education or social welfare, as I read it. Will the Minister explain what social welfare encompasses or is it just what is covered by the Department of Social, Community and Family Affairs because it is important that is clarified?

On Deputy Owen's point, it would be impossible to police this section because most hotels pay an annual subscription which would not relate to a charitable function. If a charitable organisation held a function in a hotel, the function would be incorporated in the hotel's annual fee. There would be a duplication there. Where would the question of a charge arise in respect of a charitable function if a hotel has paid PAPI £20,000 per year for ongoing activity? We are talking about gross takings and net profit and there is a huge difference between gross and net. Let us be honest about it. Anybody running a hotel, regardless of whether it is a charitable organisation, has start up costs. We should consider the start up costs against the net profit. Who would police that section and how will it be done?

Will there be a refund?

I would like to give Members my views on this section because it is like other sections in respect of which I would like to be on the other side of the table putting some of these arguments. Social welfare, as I understand it - we had some difficulty getting better words - would be clubs with a social benefit, such as youth clubs. It is amazing when——

Would it cover sports clubs?

Yes. It would cover clubs with a social benefit. The amendment would impose an exclusive requirement that beneficiaries under this clubs and societies exception be conducted solely for the advancement of religion, education and social welfare in addition to being charitable in its main objective. In view of the complex legal meaning to be attached to the concept of what is charitable, I fear this change would make the exception too complex and inflexible to be capable of working. My wording is more flexible than the Deputy's. We would prefer if we had a more flexible formulation incorporated in the present text.

We had a useful debate before about IMRO and the schools. I gave Members an undertaking to talk to this organisation and we came back with some developments which Members broadly welcomed. There is scope for doing something similar here. Clearly, it is very difficult in law to try to make the distinction. It is quite clear when one takes the obvious examples of discos and so on where one needs legislation to protect rights holders. When one goes down the line, one does not want to attack the widows clubs, etc. One idea to which I am giving consideration is that, as before, we will agree the section but that I will refrain from allowing its provisions from coming into force.

I thought that was unconstitutional.

No, we would only do it on the basis that we would try to reach agreement with the rights owners that they would not pursue the people we want to protect. I will endeavour to take this course of action, with Members agreement. There are advantages in doing so and I will be obliged to obtain legal advice in respect of these issues. As far as I am concerned, my suggestion is legally sound and, if the Minister of the day felt it necessary, the section could always be put into force.

My suggestion may be a useful way of assuaging Members' legitimate concerns. In my opinion there are certain clubs which should not pursued by organisations representing rights holders. As I understand it, those organisation do not necessarily want to pursue widows clubs and other clubs of that nature.

I am not overly satisfied with the Minister of State's explanation. I am surprised that, at this late stage of the legislative process, he is vague about the meaning of this section which appeared in the Bill as drafted. I assume he is stating that if the section remains as drafted he will be obliged to introduce an amendment on Report Stage to say that section 93 will not be enforced except on a date selected by the Minister.

Deputy Perry wants to strengthen the position of the collecting agencies whereas I want it to remain flexible.

My understanding of what the Deputy said is that hotels that hold functions pay an annual composite fee in respect of royalties. However, the section exempts clubs, etc., from having to pay copyright royalties. If, as Deputy Perry stated, the owner of a hotel paid a £20,000 fee at the start of the year would he or she be able to claim a refund from the collecting agency in respect of functions which are held on the premises but which are exempt under the Bill? Would he or she be obliged to charge the club in question in order to recoup this money? Will a hotel be obliged to pay for exempt functions? Will collecting agencies be allowed to keep the money they received in respect of functions which are exempt?

I do not know if that makes sense. I assume that that the fee paid by a hotel owner at the beginning of the year - on the basis that 200 functions will be held on the premises and that music will be played in the bar 365 days of the year - will be calculated on apro rata basis. Who decides whether a hotel will be entitled to a refund if any of those 200 functions should turn out to be exempt?

To return to the amendment, the Minister of State indicated that he wants to be flexible but I wonder whether he is being too flexible. Section 93 (2)(a) states that “the club, society or other organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion .....”. What is meant by “the advancement of religion”? There are a large numbers of organisations, cults, etc., operating at present which would proclaim themselves to be operating in this area but which are a cause of concern to many people.

To what degree will the clubs, societies or other organisations to which the section refers be concerned with the advancement of religion? As it stands, they are "otherwise concerned", in some way concerned or slightly concerned with its advancement. The amendment states that they should be "solely concerned" which means that the advancement of religion would be their main concern. I take it the Minister of State is saying that an enabling section might provide a way around this impasse. I ask him to reconsider the position because the wording in the section is too loose.

Very few clubs, whether they be charitable or otherwise, hold functions without having a licence in respect of the premises where such functions are held. The benefit of granting an exemption would be because the attendance would be quite small. Hotels pay charges annually; therefore, the cost is built into their annual subscriptions. This means that charitable organisations would not benefit from exemptions because the establishment where functions are held pay the annual fee.

I was trying to be helpful earlier and I believe my suggestion still offers the most practical way forward. We are discussing charitable organisations and I note that the language used in the section is similar to that used in the 1963 Act. In that context, there may be a case for reconsidering section 93(2)(b) and I will be happy to do so. I put forward a reasonable proposal which would maintain the integrity of the law. I will obviously inform Members of the position on Report Stage but I believe we could agree the section on the proviso that its provisions would not be put into force until such time as the need for them arose.

As already stated, we do not want collecting agencies to pursue certain people. That is why I asked the Deputy to withdraw the amendment since use of the term "and are solely" would impose further restrictions. I am trying to ensure that we protect certain organisations while also ensuring that discos, night-clubs, etc., pay their fees. I am convinced that my proposal offers the best way forward. It should be noted that a charitable organisation or a club holding a function in a hotel would be exempt from all of these charges.

They are already paid into a central fund.

Hotels should make provision in their contracts with collecting agencies to cater for such eventualities.

Such situations do not really arise anymore.

I know there are problems which must be resolved.

It would be important that the licensing authority policing this area would allow business operators to claim exemptions, particularly if they indicated the charities holding functions on their premises. Business operators pay these fees regardless but charitable organisations, whether they hold their functions in hotels, pubs or wherever, do not. It is important that we obtain clarification in respect of this matter.

Will the Minister of State be able to return before Report Stage with definite proposals in respect of this section, perhaps following discussions with the various bodies concerned?

This could be a charter for the owners of discos, etc., to use a religious, social or educational club as an excuse not to pay royalties.

That is right.

All they will be obliged to do is give them the £5 collected at the door, which is not where they make their money.

We are at one on that.

Amendment, by leave, withdrawn.
Section 93 agreed to.

As it is now past the time we agreed to adjourn, I propose that we do so now. I thank the Minister and his officials for their attendance. As agreed at the start of today's meeting, the Select Committee will meet again on Tuesday, 15 February in Room G5 from 2 p.m. to approximately 3.45 p.m. when we will resume our consideration of the Bill. Members are reminded that the Joint Committee meets at 5 p.m. today.

The Select Committee adjourned at 3.55 p.m.