I move amendment No. 83:
In page 71, lines 36 to 41, to delete subsection (3).
In addition to amendment No. 83, I intend to move amendments Nos. 85, 86 and 87. Acceptance of those three amendments, which refer to section 122(4), will necessarily involve the withdrawal of amendment No. 84. Amendment No. 85a is contrary in effect to the Government’s amendment and I do not propose to accept it. Amendment No. 91 in Deputy Rabbitte’s name to section 134, is connected in effect to section 122 and since it is contrary to Government policy in the matter, I do not propose to accept it.
These are important Government amendments. Their purpose is to correct a number of flaws in section 122 and, most importantly, to clarify the relationship between section 122, which relates essentially to the management of copyright actions in court, and section 134, which provides for certain presumptions relating to subsistence and ownership in civil and criminal copyright proceedings. These presumptions in section 134 include rebuttal presumptions of the subsistence of copyright in a work and of ownership of copyright in favour of plaintiffs.
I note we will have the opportunity later to discuss section 134 in general as is it opposed by Deputies Owen and Stanton. However, since section 122 and 134 are closely connected in effect, it is necessary to say that I regard the effective operation of the section 134 presumptions as being of the greatest importance for the effectiveness of the regime of civil remedies and criminal penalties provided for by the Bill. Deputy Perry referred to that point.
I regard the adoption of the amendments proposed by the Government to section 122 as essential to secure the effective operation of section 134 for reasons I shall explain. The main difficulty with the current text of section 122 is that it creates the option of a hearing to determine disputed issues of copyright ownership as a preliminary issue. Such preliminary hearings on issues of fact may be appropriate in many areas of litigation where relatively limited preliminary issues of fact may conveniently be disposed of in this way. However, in the case of copyright actions, the issue of ownership can be critical to the outcome and very complex to decide.
Furthermore, it has been represented to me by a number of Deputies and Senators, including Senator Coghlan in the Seanad debate, that the preliminary hearing of fact provided for in section 122, as it stands, would not appear to be governed by the presumptions applied to substantive copyright actions by section 134. Given the importance of the issue of ownership in many copyright cases, I have come to the conclusion that preliminary hearings of this sort would be not only inappropriate in themselves but could seriously undermine the effect of section 134 presumptions.
While I realise I am encroaching on the forthcoming debate on section 134, it is necessary to explain the importance of the presumptions provided for in that section, if the importance of the current amendments are to be understood. Those section 134 presumptions include rebuttal presumptions of the subsistence of copyright in a work and of ownership of copyright in favour of the rights owners in copyright actions, whether civil or criminal. These presumptions are already in force for civil actions for breach of copyright under the provisions of the Intellectual Property (Miscellaneous Provisions) Act, 1998, which I introduced in that year. Amendment No. 91 would delete the second of these rebuttal presumptions.
I am sure Deputies will understand that I did not include section 134 lightly since it involves a significant shift in the burden of evidence in copyright actions on to the defendant. However, this was done for very pressing reasons. The position under the Copyright Act, 1963, was that in order to defend a copyright action a defendant needed to do no more than deny point by point the points of claim made against him or her. The approach of putting the plaintiff or prosecution on proof of the detailed points of his or her claim is usual in many cases of legal action. In the case of copyright, however, it can cause particular difficulties. These occur principally in cases where the protected material that is the subject of the case is the product of an international copyright industry, such as computer software or music recording.
Under the Copyright Act, 1963, plaintiffs in such actions could be faced by defendants with blank denials of such basic matters as the subsistence of copyright in a modern song and of the plaintiffs' ownership of the material without the need for the defendants to show any basis for these denials whatsoever. In view of the complex chains of ownerships which often characterise the intellectual property of the international copyright industries, this in itself can be a substantial barrier to rights holders considering legal action to protect their right.
The position is made even more burdensome to rights holders by a finding of the Supreme Court in 1998 in which the court held, effectively, that affidavit evidence alone would not be sufficient to overturn denials of this sort, however unreasonable. The deponents of the affidavits would have to be available to be cross-examined directly in the court on the content of their affidavits. This presents holders of complex international copyright interests with a situation in which they would need to marshall witnesses, in some cases, from a number of countries at great difficulty and expense in order to overcome even the most transparently baseless denial of, for example, the subsistence of copyright in a song. Deputies would appreciate that this situation represented a substantial barrier to justice for some rights holders and, as such, it amounted to a serious breach of Ireland's obligation under the TRIPs Agreement.
It is important to remember that the section 134 presumptions represent a shift in aspects of the burden to produce evidence only, rather than a shift in the burden of proof and that the presumptions will be rebuttable. It will still be necessary for plaintiffs and prosecutors to prove their case. All that the section will require of defendants is that if, for example, they wish to deny that a particular plaintiff owns a particular copyright, they will have to produce a reasonable argument or prima facie evidence to support this denial. This would be considered by the court and where the court considers that a reasonable denial had been made the matter would then be tried in the normal way with full examination of witnesses giving the defendant every opportunity to rubut fully the presumptions included in section 134 in favour of the plaintiff.
With these points in view, the legal and constitutional aspects of this section have been very carefully considered by my Department and by the Office of the Attorney General and that office has advised that these presumptions are legally and constitutionally sound. I apologise to the committee for this apparent digression, but it was necessary if the motives of the Government in tabling its amendment to section 122 and in responding to those tabled by Deputies Owen, Rabbitte and Stanton to this section are to be understood.
In order to ensure that section 122 does not undermine the operation of the section 134 presumptions, amendment No. 83 will delete section 122(3), thus eliminating the preliminary hearing or trial of fact in relation to ownership of copyright, which I have concluded seems inappropriate to copyright actions.
Amendment No. 85 amends section 122(4) by preserving the right of the court to entertain evidence as to the ownership of copyright on affidavit, but makes this subject to the terms of section 134. From my previous comments, it will be clear that I cannot accept amendment No. 85a. While it is implicit that cross examination will be required where a reasonable prima facie response to a plaintiff’s claim of copyright is made, a specific declaration along the lines proposed in amendment No. 85a will not reinforce this requirement and might confuse the meaning of the section.
With respect to amendment No. 84 in the name of Deputy Rabbitte, I considered the possibility of removing subsection (4). However, the office of the Attorney General advised that in its amended form the subsection served a useful purpose in clarifying the discretion of the courts in using affidavit evidence. I am mindful that amendment No. 88, in the name of Deputy Rabbitte, is relevant to the interpretation of section 122(4). However, since this raises a different issue of substance, it would be better if the committee discussed that amendment separately.
The importance of the international copyright industries to our modern economy is great. These industries would continue to face serious difficulties in obtaining effective access to justice if this amendment were to remove the rebuttal presumption in favour of their ownership of disputed materials contained in section 134(3). In view of this and following my explanation, I trust Deputy Rabbitte will agree to withdraw amendmentNo. 91.