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

I welcome the Minister of State and his officials. It is proposed that we will work from now until about 5.30 p.m. Is that agreed? Agreed. I understand some Members have commitments for meetings at 5 p.m. and we will see what progress we have made at that time. As we agreed at our previous meeting on the Bill, we will meet again from 5.30 p.m. to 7.30 p.m. on Tuesday, 22 February and at the same times on Wednesday, 23 February.

At our previous meeting, Members were circulated with new groupings for amendments dated 15 February and a new sixth additional list of amendments dated 14 February. No further new documentation has been received since then, so these lists remain current. At our previous meeting, we agreed to resume on section 102 having agreed section 101. Before putting the question on section 102, to which no amendments have been tabled, I open the debate to any matters the Minister of State or Deputies may wish to raise.


Question proposed: "That section 102 stand part of the Bill."

Has there been a change in Europe and Britain with regard to artists' resale rights? I have seen newspaper reports to this effect and, if this is the case, we could be out of synch with the rest of Europe unless we bring our legislation into line. I am sure that the Minister of State is aware of the pressing legislative programme before the House in this session and the next, and I am concerned that we will not have an opportunity to introduce legislation for some time to give artists in Ireland this right.

Will the Minister of State consider inserting an enabling provision in this Bill? Artists' resale rights are dealt with in copyright legislation in other jurisdictions. If the Minister of State inserted an enabling provision in this Bill he could enact such a provision at a later stage by way of regulation to bring us into line with the rest of Europe. Otherwise this matter will require another Bill and that may take a long time.

I spoke to someone in Brussels yesterday about the meeting and it appears that the UK Government, because of adverse publicity, is now beginning to tidy up a number of areas because the Prime Minister, Mr. Blair would like to be seen as being more European. My concern is that the British are pushing for a 20 year lead-in for droits de suite to be legally enforceable in the remaining four EU countries which do not have such a provision at present. Will the Minister of State outline Ireland’s attitude at the meeting yesterday? Did we change our attitude and follow Britain? My concern is that we have been following Britain all along in its abstentionism and lack of enthusiasm for droits de suite. Did the Minister of State give new instructions to his officials arising from the UK’s policy change? What length of time has Ireland supported for the introduction of droits de suite - is it four years or closer to the 20 years which the UK is proposing in a rather mealy-mouthed way?

I saw media reports which were a little exaggerated and I asked my officials to check the position. The up-to-date position is that, following a COREPER meeting yesterday, work is continuing on a compromise text for the directive on droits de suite. That is all the information I have as it was not possible to get any more details. That is the official position. The media reports went beyond this but, following the last meeting of the committee, I directed our officials to work towards this compromise. That is how matters are proceeding. I expect the proposals to come before the Council of Ministers in March. I will represent the Government at that meeting and will be happy to keep members informed of events. The Department is fully stretched trying to deal with this issue which will require some work if and when it comes to fruition. I will keep the committee informed and my advice would be that we deal with this issue separately.

We were not dealing with section 102, Chairman, but with Fine Gael's droits de suite amendment which was tabled earlier. The Minister of State vehemently opposed that amendment but now we find that the position has changed in Europe.

As regards moral rights, section 102 states that the author shall have the right to be identified as the author and that right shall also apply in relation to an adaptation of a work. The Minister of State goes on to take out that right. Is he satisfied that he is in keeping with what is understood under Article 6 of the Berne Convention? Have we gone further or are we taking a less favourable stance on paternity rights? As a result of section 103, have we begun to lessen the paternity rights? There is a difference between economic rights and paternity rights, or moral rights as they are sometimes called. Will the Minister of State clarify this issue as the explanatory memorandum is not helpful in this regard? Will he explain section 102? Have we gone as far or further than others?

We are moving into a new area of moral rights and it is no harm for me to briefly refer to this area. Paternity rights are the rights to be identified as the author of a work. The integrity right is the right to object to a derogatory treatment of a work. There is also false attribution. We are talking about moral and not economic rights.

The rights are set out in Article 6.B of the Berne Convention in respect of authors, and are included in Article 5 of the WIPO instrument on performers and phonogram producers agreed in Geneva in December 1996. Moral rights refer collectively to a number of rights which are more personal than commercial in character, and are not normally included in the term "copyright". This is a new area as distinct from the 1963 Act. We must look at existing rights under Article 6 of the Berne Convention. There are two moral rights - the right to paternity in a work, which means the right to be identified as the author, and the right to integrity, which I explained.

To date Ireland argued that the integrity right was protected through our laws on defamation or breach of contract and that there was no clear statement of law on the paternity right. While moral rights have their origin in the Napoleonic code and have not traditionally been included in the copyright law of common law countries, moral rights will be an essential element in copyright law from now on. This is due to advances in technology which facilitate changes to works which can be detrimental to the interests of authors and rights holders in general.

The relevant part of the Bill dealing with the moral rights of authors should include sections on the rights in question, the exceptions to the rights, the duration of the rights and any qualifications of the rights. It should also include a section similar to that contained in the 1963 Act on the false attribution of authorship and on the right of privacy of certain photographs and films. There will also be a need to clearly indicate how moral rights apply in respect of works of joint authorship and parts of works. This is a new and essential part of the Bill.

I welcome this new section but because it is new we have to be more careful with it than we have been with previous sections. Will the Minister of State define what he means by "the author" of a work?

It is the person who creates the work. It is defined in section 21.

Will the Minister of State look at section 105? Page 101 sets out qualifications on the definition of "author" where the Minister's definition is qualified to include a body incorporated under the law of any country, territory, state or area. Does this impinge on section 102 in any way?

I understand that some amendments have been tabled on qualification which might be of assistance to the Deputy.

Do the qualifications set out in section 175 qualify the term "author" in section 102?

I do not have a copy of the amendments at the moment but I will be happy to provide the Deputy with information when we come to section 175. Does the Deputy require this information immediately?

If it is not clear what is meant by "author" in section 102, we may run the risk of passing paternity rights on to corporations. I fail to see how paternity or moral rights could be conferred on corporations. Perhaps that is possible but the matter should be clarified.

It is very clear; when we refer to "author" we mean the person who creates a work and the people referred to in section 21(a) to (h), inclusive.

Section 175 states that a work qualifies for copyright protection in particular circumstances. Does that also include moral rights where the author was at the material time a body incorporated under the law of any country, territory, state or area?

There seems to be some confusion here. Moral rights do not have anything to do with copyright protection; they are personal rights. We are referring here to a specific personal right. The definition of "author" is that outlined in section 21.

That is what I wanted to know.

A further definition of "author" is provided in section 23 which states that the author of a work shall be the first owner of the copyright with certain exceptions. Does a paternity right exist in regard to Bills or Acts of the Oireachtas and, if so, does it cover everyone? I apologise, I note there is an exclusion in this regard in section 23(1)(b).

RTE expressed concern about section 102 in so far as it felt authors of relevant copyright protected works should assert their paternity rights. Obviously, RTE does not deal with the written word but it stated that in the absence of a requirement that the paternity rights must be asserted by an author, RTE, as a large scale user of copyright works, could be left with claims from authors of works which do not merit identification on use. Has the Minister considered this issue? I believe that if someone is the author of a work, they should have a paternity or moral right to it as well as owning the copyright. Obviously RTE does not wish to find itself the object of endless litigation in regard to moral rights, the existence of which is very difficult to prove. Has the Minister satisfied himself that RTE's concerns are covered?

This would be a formality and would be in breach of Article 5 of the Berne Convention.

What would?

If people asserted the right——

If they were forced to assert the right?

That would be a formality which would be in breach of Article 5 of the Berne Convention.

I understood that other bodies which owned copyright would assert it as a formality.

The issue could be dealt with as a matter of contract in any case. In RTE's case, it would be a contractual matter between the corporation and the authors in question.

I understood that the whole idea of paternity and moral rights was that they were kept and could not be destroyed or undone through a contract. This issue may arise in a later section.

Question put and agreed to.
Question proposed: "That section 103 stand part of the Bill."

This section relates to exceptions to paternity rights. Section 103(2) states:

The paternity right shall not apply to anything done by or with the authority of the copyright owner where the copyright in the work originally vested in an employer under section 23.

An amendment has been tabled here to the effect that a staff journalist does not own the copyright to his or her work but that it is owned by the newspaper for which he or she works. What kind of protection exists in regard to the adaptation of a piece of work where a journalist's name appears on an article or where its content is edited by a sub-editor, thereby shifting the emphasis? Is any protection afforded in such circumstances?

That point relates to the integrity right, the right to object to the derogatory treatment of work, which is dealt with in section 105. We are currently dealing with the paternity right, the right to be identified as the author of a work.

If a journalist does not own the paternity right, can he or she own an integrity right?

Authors can hold paternity rights, integrity rights and other moral, personal rights except where exclusions apply. During our discussion on sections 50 and 51 we referred to the incidental inclusion of works in which an author does not have the right to be included. The exceptions to which the Deputy refers are logical in view of our earlier discussions. Section 52 relates to examination issues in which there is no need to refer to an author. Section 67 relates to parliamentary or judicial proceedings and section 68 relates to statutory inquiries. These are logical exceptions in which paternity rights do not apply.

The Minister's reply concerns me. Section 105 sets out exceptions to the integrity right where a work is made for the purpose of reporting current events or for a newspaper or periodical, etc. I am concerned that when all these exceptions are combined, the author of a work may not have any rights. For the sake of argument, let us cite the example of the Minister of State at the Department of Education and Science, Deputy O'Dea, a consummate author who writes for one of the Sunday newspapers. I presume he is a consultant journalist rather than a staff journalist. If someone changes the headline on one of his stories, does he maintain integrity rights? Is the Minister saying that people can either have both paternity and integrity rights or integrity rights but not paternity rights or neither?

He would not have any integrity rights in regard to a work created for the purposes of the newspaper. Section 103(4) reads that the paternity right shall not apply to a work made for the purposes of a newspaper or periodical. Minister O'Dea would get the same treatment under both paternity right and integrity right.

In other words, there is no protection.

Will the Minister of State give an example of section 103(5)(b) which states, “in which the copyright originally vested in a prescribed international organisation”? How can this be the case?

An example is the World Intellectual Property Organisation (WIPO) in Geneva.

They would own paternity rights?

No, it is the opposite. The paternity right shall not apply in relation to a work in which Government or Oireachtas copyright subsists, or in which the copyright originally vested in a prescribed international organisation. WIPO is an example of this.

And it must be international?

Question put and agreed to.
Question proposed: "That section 104 stand part of the Bill."

This relates to integrity rights. I need clarification on this issue. The section reads: "Subject to the exceptions and qualifications specified in section 105, the author of a work shall have the right to object to any distortion, mutilation or other modification. . . ”. The exceptions are so great, so to speak, that it is difficult to know why section 104 is needed. Will the Minister give an example of who is left after all the exceptions are taken into account? Who can claim an integrity right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would prejudice his or her reputation? This would apply to a writer of a book but not to a periodical, newspaper, encyclopaedia, dictionary, yearbook or other collective work of reference or to a work made available to the public with the licence of the author for such purposes, or a subsequent use of a work. The integrity right is not infringed by anything done for the purposes of avoiding the commission of an offence. It shall not apply unless the author is identified at the time.

Are we on section 104 or 105?

Section 104 is relevant to section 105 because it reads, "Subject to the exceptions". We are talking about what section 104 means. On whom is it conferring integrity rights?

An obvious example in section 104 is if an author writes a book which is made into a film. Obviously he or she would have a right to object to any distortion, mutilation or other modification of that work. This is the type of person we are trying to protect under the integrity right. Section 105 lists the exceptions. There was a reference to Minister O'Dea writing for a newspaper. In this case there is no integrity right.

Is a film made from a book the only example the Minister of State can give?

Every author except those referred to in section 105. The sections are related.

Who judges whether a book which is being turned into a film has been mutilated, distorted or modified? No film is an exact copy of a book. One could not make a film long enough to cover, for example, the book War and Peace. Is there a later reference how this would be policed? Who makes a judgment on this?

Obviously the person offended would take action and the courts would make a decision.

Question put and agreed to.

I move amendment No. 79:

In page 64, subsection (2)(a), line 20, after “section” to insert “50 or”.

Amendment agreed to.

I move amendment No. 80:

In page 64, subsection (2)(b)(i), line 23, after “offence,” to insert “, avoiding interfering with constitutional rights, or avoiding an action at common law,”.

The section reads that integrity rights should not be infringed by anything done for the purposes of avoiding the commission of an offence. The amendment proposes adding the words "avoiding interfering with constitutional rights, or avoiding an action at common law. It must be possible for a broadcaster to make changes in those circumstances without infringing the integrity right. It is important that this issue is broadened because constitutional rights are paramount.

The exception to the integrity right governed by section 105(2)(b)(i) is designed to cover acts aimed at avoiding the commission of an offence specifically. While I appreciate Deputies Owen and Stanton’s intentions in seeking to extend this to acts aimed at avoiding interference with constitutional rights or avoiding an action at common law, this would appear both quite sweeping as an exception and rather vague by comparison with the fairly specific scope of the paragraph as it stands. For this reason I cannot accept the amendment at present. However, I will consider the matter further and take legal advice for Report Stage. I would prefer if the amendment were not pressed at this stage on the understanding that it may be re-entered on Report Stage.

I am happy if the Minister of State will seek advice on the matter.

Amendment, by leave, withdrawn.

I move amendment No. 81:

In page 64, subsection (2)(b)(iii), line 30, to delete “offends” and substitute “is likely to offend”.

Amendment agreed to.
Question proposed: "That section 105, as amended, stand part of the Bill."

Section 105(4) reads, ". . . . 'sufficient disclaimer', in relation to an act capable of infringing the integrity right, means a clear and reasonably prominent indication given at the time of the act, or where the author is then identified. . . ". Could the Minister of State be a bit more specific? How could there be this clear and reasonably prominent indication given at the time of the act? What form would this take? Would it be done in big writing, little writing or what? Is it sufficient, for example, to notify the person of the act or does the section mean there is no requirement for the indication to appear with the identification if there is an indication at the time of the act? These are the type of sweeping statements we all gloss over and it is only when the Act is being implemented that people ask what is a clear and reasonably prominent indication? Will the Minister of State indicate what he thinks it means?

If RTE said in a television broadcast that the author had not authorised the change being made - in other words, if it inserted such a disclaimer. That is an example of what we are trying to cover.

There is a tendency for companies to produce such indications in superscript and one may have to use a magnifying glass to read an apology which is printed at the end of a page. I assume the Bill will define how these should be written. Most people will not see them if they are written at the end of a page.

There should be a clear and reasonably prominent indication given at the time of the act. If a problem arises it would be a matter for the courts. The language used is adequate to deal with the Deputy's query.

How is this to be given? Will it be sufficient to notify the person of the act? Does this section mean there is no requirement for the indication to appear with the identification if there is an indication at the time of the act?

It has to be given at the time of the act.

Question put and agreed to.
Question proposed: "That section 106 stand part of the Bill."

Does section 106(2)(a) deal with the author? Is the definition the same?

So we are dealing with the same person.

Yes, as defined in section 21.

The issue of sufficient acknowledgement appears to be limited to circumstances set out in sections 105 and 106. Section 132(3) appears contains a discrepancy. It reads:

(3) In proceedings for infringement of the right conferred by section 105, the appropriate court may grant an injunction prohibiting any act unless a sufficient disclaimer is made, on such terms and in such a manner as is approved of by the court, dissociating the person entitled to the right from the treatment of the work.

Does that assume that a sufficient disclaimer automatically applies in all cases? Is the Minister satisfied that the two sections do not contradict each other?

Section 132 refers to ". . . a sufficient disclaimer [being] made, on such terms and in such a manner as is approved of by the court . . . ". The court would decide.

Section 132 deals with remedies open to a person whose moral rights have been infringed. Would that be after the screening of a programme, for example.

It would happen after the event.

Question put and agreed to.
Section 107 agreed to.
Question proposed: "That section 108 stand part of the Bill."

Section 110(1) reads: "A person has the right not to have a work falsely attributed to him or her as author." Attribution means a statement expressed or implied as to who is the author of the work. Staff journalists do not now have rights under section 23(2), although they have regained some. Is there a possibility that it could be quite clear who an author was but their name would not appear on a work? Could somebody be damaged in that way? Is that a problem? Has it been looked into?

We are using the word "person", not "author". The section relates to everybody. If a person writes a book and uses another's name that constitutes a false attribution of work. That person has a right not to have work falsely attributed to him or her as author.

Will the Minister of State give an example?

Let us say a man wrote a book and claimed it had been written by Roddy Doyle. That is what we refer to when we provide that a person has the right not to have a work falsely attributed to him or her as author.

A better example might be if the authorship of Primary Colours is ascribed to me where the author is not known. I could then be lumbered with the belief that I was the author.

Can a "person" be a "corporation"? Earlier it transpired that an "author" could be a "corporation".

My officials advise me that it is not relevant. I will come back to the Deputy with a definitive answer.

The Bill does not define a "person". We have defined "author" as including corporations but the reverse can possibly be true. If a corporation can be an author——

Theoretically, it could be.

Question put and agreed to.
Section 109 agreed to.
Question proposed: "That section 110 stand part of the Bill."

Section 112 deals with the death of a person on whom the right is conferred. We do not have a definition of "person" so there is no point talking about the death of such person, corporation etc. We are dealing here with the death of persons and authors. How can there be a death of a corporation?

Perhaps we should speak in terms of a person. I understand that the period of 20 years was referred to in the 1963 Act. We did not receive a large volume of representations on it and had no reason to change it.

Is there a definition of moral rights? Confusion arises because "moral rights" is the general term used for the paternity, the integrity and the right conferred by section 109 to privacy. It is a collective term, like a gaggle of geese. It is not defined. Would it not be better for "moral rights" to be included in the definitions? I have, however, already criticised the Bill for its scattering of definitions. Perhaps it is contained in the Bill and I have missed it.

The chapter is defined as moral rights. It has covered paternity rights, integrity rights and false attribution.

The word "moral" is an odd word.

It is. Article 6 of the Berne Convention deals with moral rights to claim authorship to object to certain modifications or derogatory action. It states that the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification or other derogatory action in relation to the said work which would be prejudicial to his honour or reputation. It is a collective term for the rights we have been discussing.

How does one define "moral".

We will have a difficulty.

Question put and agreed to.

I move amendment No. 82:

In page 66, subsection (3)(a), line 41, to delete “a”.

Amendment agreed to.
Question proposed: "That section 111, as amended, stand part of the Bill."

Will the Minister explain what is meant by "It is not an infringement of any of the rights conferred by this chapter for a person to undertake any act where the person entitled to the right conferred by this chapter has consented to the use of those rights by the other person."?

It is about the waiving of rights. The Deputy asked about subsection (5). What does the Deputy want me to explain?

I want to know what it means. It is unclear as to what it is about.

Having gone through the position of rights, waivers, etc., we then say:

It shall not be an infringement of any of the rights conferred . . . . for a person to undertake any act where the person entitled to the right conferred by this Chapter has consented to the use of those rights by that other person.

If he has given consent to somebody else the works can be used.

Question put and agreed to.
Question proposed: "That section 112 stand part of the Bill."

Where there are joint authors, does this mean the paternity right is held by both of them?

That is correct. There is agreement of both parties.

Question put and agreed to.
Question proposed: "That section 113 stand part of the Bill."

This is a small section which looks innocuous and may not mean anything when one first reads it. It relates to the rights conferred by chapter 7 and states "shall be incapable of assignment or alienation". Does that mean a newspaper, broadcaster or anybody else has not the right at any stage to include in a contract that a person is giving up his moral paternity rights if he continues to own them? Is it a blanket protection for people who have written, painted or photographed something, even if they were inclined to get a contract, if that were included? Is it incapable in law?

These are personal rights and cannot be transferred to someone else - that is the assignment. Alienation is something similar - detach from one person to another. This returns to the fundamental point that they are specific personal rights which cannot be transferred to somebody else. They can be dealt with by contract.

It states: "it shall be incapable of assignment or alienation." Is the Minister of State suggesting, with the willingness of the person who owns the moral right, they can sign them away?

They cannot be sold or given away but one can agree not to exercise them - that is the waiver. It is legalistic. The Berne Convention does not allow assignment or alienation but does not ban waiver. Waiver means agreeing not to exercise one's moral right.

What does that mean?

It can be done under contract. As described in section 111, waiver means one can agree not to exercise one's moral rights.

Is that not another way of assigning moral rights away?

Or alienating them.

It is very legalistic. A person holds onto it but agrees not to exercise it. It is a fine legal case.

For the period of the contract one is signing.

The moral rights are seen as basic human rights. Are we saying people can decide not to exercise their basic human rights?

I will go through the background——

We are talking about basic human rights. Does that mean a person may decide not to exercise them but there is no need to stop somebody exercising them at a later stage if they wish, even if the contract is in vogue or in operation?

One could decide not to exercise them for the term of the contract. This arose in the Seanad and I will make one or two brief comments.

I will allow Deputy Rabbitte to come in and then go back to the Minister of State. He might be able to incorporate his point into the response.

My point relates to this but not to the point Deputy Stanton has raised.

One or two Senators mentioned this in the Seanad. The Bill, as published, would have made moral rights incapable of waiver. There was another change, and the Deputy is correct to ask why we changed to waivability The reason behind this is if artists were incapable of waiving their moral rights, which are rights personal to them rather than pure economic rights, it would give these rights more substance. Strong representations were made by the Irish film industry and the broadcasting industry to the effect that the introduction of non-waivable moral rights would significantly damage Ireland's position in competing for film industry investment. This related, in particular, to the UK where it applies.

We are talking about non-waiver.

Yes. The UK have waivable rights but there are none in the US. The UK argue that international investors would not be attracted to a situation in which a non-waivable integrity right, that is the right of authors to object to derogatory treatment of works, could rest with novelists, screen writers, actors, etc., whose work might contribute to a film. US investors in particular were not used to such contributors holding on to the power to object to the use made of their works or performances after the contract for the economic exploitation of those works had been concluded and faced with this situation in Ireland would be more inclined to locate their projects in the UK. In these circumstances, it was argued giving artists and performers a more substantial non-waivable right would be self-defeating since it would seriously reduce their opportunities to work in the first place.

Some sections of the software industry also express concern that a non-waivable paternity right could create problems with independent contractors employed by software firms insisting on their right to be identified of authors or co-authors of programmes which would eventually be marketed under the firm's name. This at the very least would complicate the marketing of some Irish software. In view of these arguments the matter was reviewed and it was concluded that any advantage to authors, artists and performers resulting from the non-waivable moral right would be outweighed by the disadvantage which occurred principally in the form of damage to the industries upon which they depend for work. Accordingly, the Bill was amended on Committee Stage in the Seanad to allow for a waiver of moral rights on the same basis as applies in Britain. Perhaps I should have explained that earlier.

It would have been a great help. That is how section 111 has changed.

The Minister has explained that well and has achieved a balance. I was concerned about artists and writers being put under pressure to waive rights by being told they would not get a contract unless they did so.

Is this formula only applicable with regard to personal rights? There could be an unreasonable intrusion into the classroom by a collecting agency. Is there a reason international practice requires that we cannot leave the right in place but must permit a waiver along the lines suggested in this formula for personal rights?

Copyright is a property right. These are personal rights and that is why we are applying different principles here. The rules are different. We are talking about a property right as distinct from a moral right.

Would it be permissible to import the waiver of rights mechanism into an area where it would not be disputed that the collection agency would have rights to assert under statute or international convention but where, because of the public interest or political expediency, it would be prepared to permit a waiver? Is it not permissible to introduce the waiver formula where the property rights apply?

Because they are personal property rights, the answer is 'no'. It would not possible to do that because there would be protection under the Constitution.

Even if the person who could assert ownership of the property rights in question was to assent to their being waived?

It is possible to assign copyright in particular cases.

I asked earlier about the use of "moral rights". I see from the documentation that David Faver, whom the Minister has no doubt read, calls into question the direct translations of "droit moral” and “droits moreaux” to “moral rights”. I am concerned about the use of the word “moral” in any area because what is immoral to one person is moral to someone else. Instead “legal” should be used. Using the phrase “moral rights” makes it sound like something aesthetic and unenforceable.

In the same article there is a reference to the use of "paternity". As opposed to what? Maternity? Fraternity? The argument is made that someone producing a work is like a woman giving birth. Why does the metaphor suddenly switch to paternity when the issue becomes who deserves credit for the result of the efforts.

I want to hear the Minister answer this one.

Mr. Faver says that all this unnecessary static would disappear if the right were relabelled as a right of attribution or credit as opposed to using the old fashioned phraseology of "paternity rights". Discuss and comment, as they say in English class.

We do use "he or she" throughout the Bill.

One does not have to do that anymore.

It is a universal term, that is all I can say. I accept the point about using the phrase "moral rights" but we are using it as an umbrella title for all of these other rights. We cannot do much more about it.

Was there a discussion about the use of "paternity"?

It is a universal term.

Are we allocating moral rights to what we once knew as neighbouring rights holders, the makers of sound recordings, broadcast programmes, typographic arrangements and computer programmes? If so, is that in line with what is happening in Europe?

It goes back to the question of whether it is an actual person. There are moral rights for a performer.

What about the neighbouring rights holders, the makers of sound recordings and cable programmes?

We are going back to the question of the author of a work. If the Deputy looks at that again, he will find the answer to his question. Also, there is the definition of work. It means "literary, dramatic, musical or artistic work, sound recordings, film, broadcast cable programme, typographical arrangement of a published edition or an original database" and includes computer programmes.

Question put and agreed to.
Question proposed: "That section 114 stand part of the Bill."

Section 114 states, "On the death of a person entitled to the paternity right". We have already established that a corporation can be entitled to paternity rights, how can we make sense of this if we talk about the death of a person who might be a corporation?

We are talking about an actual person.

Does that mean that in all cases a person must be named as the person entitled to paternity rights and that corporations cannot hold paternity rights?

I do not think so.

Yes or no?

Obviously it would have to be an actual person. A corporation would not have those rights. We are talking about a person's death. I do not see how that can be twisted into the death of a corporation.

So corporations cannot hold paternity rights?

I refer to article 6.2 of the Berne Convention again. I think I will wake up at night and see this at the foot of my bed. "The rights granted to the author in accordance with the preceding paragraph shall, after his death be maintained, at least until the expiry of the economic rights ". It refers to the death of a person.

What about the rights of a company where there might be three or four shareholders?

I return to what I said earlier. Moral rights can only be held by authors. An authors is person. These are personal rights.

Could an author not transfer his or her rights to a corporation before his death?

No. Moral rights would not apply in that case. Moral rights cannot be transferred.

These sections hang together and we can dip in and out of them. Deputy Stanton's point is a valid one. If I use the word "author" I refer to someone who has written a book or a poem. However, the Minister's definition of "author" includes a person providing the cable service in which a programme is included and a person making a broadcast or relaying another broadcast. Why should someone who takes someone else's original work have rights? In extending moral rights, we seem to be going beyond what the Berne Convention requires. Are we in danger of infringing the right of the public to avail of information? Why is the Minister going so far? We seem to be going beyond what is necessary. We seem to have gone beyond UK law in this matter. I wonder if this is good or is it something about which the Minister has been lobbied?

I am reminded that amendment No. 15, which was passed by the committee, in page 28, section 2 (1), line 42, inserts, after "programme", "other than in Part ll, Chapter 7, and in Part ll, Chapter 7, 'work' means 'literary, dramatic, musical or artistic work or film"'. The Deputies have raised a valid point. These will be the only cases where moral rights apply. I thank Deputy Stanton for raising this point and I am happy to clarify it. In the case of moral rights, "work" means "a literary, dramatic, musical or artistic work or film".

Has the definition of work in this section been amended by amendment No. 15?

The definition of "work" has been amended.

The definition is now a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, typographical arrangement, etc.

We have done this already for moral rights only. The amendment states that in Part ll, Chpter 7, "work" means——

That is not on this yellow copy. I beg the Minister's pardon. This has now been amended. Which amendment was that?

It is amendment No. 15 on the green sheet.

I was not present for that part of the discussion.

It clarifies the question of where moral rights apply. They apply only to literary, dramatic, musical or artistic works.

Amendment No. 15 does not remove the entire paragraph.

It does not need to. It merely refers to Part ll, Chapter 7. The amendment states that "in Part ll, Chapter 7, 'work' means 'literary, dramatic, musical or artistic work or film"'. The other definition of work applies in all the other parts of the Bill.

It does not apply to cable television and so on?

No. We are discussing chapter 7 which deals with moral rights.

Will the Minister return to this matter on Report Stage? There are some issues relating to amendment No. 15 which were not clarified at the time.

I will examine the wording of amendment No. 15 and make sure it is drafted properly.

Question put and agreed to.
Question proposed: "That section 115 stand part of the Bill."

We are now dealing with a new chapter. Does the Minister have a briefing note to provide an overview of this chapter?

We are beginning to deal with the area of licence versus certification and with the certification of parts of licences and works. The Minister proposed an amendment dealing with this area which he later withdrew. Does he have anything different to say about this chapter? I am confused about certification and licensing.

Chapter 8 deals with copyright. The owner of copyright can deal with it. He or she can transfer copyright to another or grant licences to others permitting them to do some or all of the acts restricted by copyright in relation to the work. Section 115 provides for the transmission of copyright as personal or moveable property; by assignment, which means sale or hire; by testamentary disposition, which means by a will or by operation of law, which means in compliance with succession Acts. The Department considers that in view of the intangible quality of copyright interest it is necessary for the Bill to provide for a clear regime governing their transmission.

There is nothing of major controversy in this section. Without it the ability of copyright owners to realise the economic potential of their copyright interest could be undermined.

Section 115(1) refers to the transfer of copyright by testamentary disposition. Will this subsist for only 20 years after death, as discussed in section 110?

No. Section 110 referred to moral rights. This section refers to copyright. The relevant period is life plus 70 years.

Question put and agreed to.
Sections 116 and 117 agreed to.
Question proposed: "That section 118 stand part of the Bill."

This section refers to copyright to pass under will with certain original fixations. Does the Minister of State have a note on this section and, if so, will he read it? The section refers "to any material thing containing an original fixation of a work which has not been available to the public before the death of the testator." It covers a case where one comes across a box in one's attic.

Section 50 of the Copyright Act, 1963, established a presumption that, where the contrary cannot be construed from the contents of a will, the recipients of bequests of any material thing embodying unpublished copyright works such as manuscripts and works of art also take the copyright in the works concerned. This provision is one of convenience and promotes certainty as regards the disposal of copyright through testate succession. A provision in similar terms exists in section 93 of the UK Copyright Bill, 1998.

Section 118 does not depart from the principle of section 50 of the 1963 Act. It is however designed to encompass technologically based expansion in the scope of copyright work since the implementation of the 1963 Act and to achieve the maximum possible degree of neutrality in future relevant technological developments. Also in conformity with the standards observed through the Bill "publication" is being replaced by "made available to the public" to allow for the wider range of methods of dissemination used in respect of this range of works. For the purpose of clarity it also specifies that the bequest in question should include specific or general bequests.

Question put and agreed to.
Question proposed: "That section 119 stand part of the Bill."

What exactly is meant by "equitable remuneration"? This term is causing difficulties for various groups.

The Minister of State has inserted a new section in the Bill by way of amendment which is causing great concern. It provides for the concept of equitable remuneration which appears to be a good one. The problem is that it has not been defined. Our amendments which sought to determine who would adjudicate on the amount of remuneration to be paid were not accepted by the Minister of State. Does he intend to include a new chapter in the Bill on Report Stage?

This section deals with a presumption of transfer of rental right in case of film production agreement and relates to the rental and lending directive. We are talking essentially about a fair return for the work in question to be agreed between the parties. Should this prove impossible the amount to be paid will be determined by the controller. While there is a specific procedure in place, there must be equitable remuneration.

When will it be paid?

Before or after?

he matter will be dealt with by way of contract to be agreed between the parties. Section 121(7) states:

An agreement is void in so far as it purports to prevent a person challenging the amount of equitable remuneration or to restrict the powers of the Controller conferred by this section.

If there is a problem the matter will be referred to the controller.

Given the range of fees and royalties involved in this massive Bill he or she will have an unbelievable task. Many people will not be fully aware of their entitlements. It is an area for lawyers to work on. Who will put a figure on this and how will it be agreed?

The matter will be dealt with by way of contract between the parties. If there is a problem the matter will be referred to the Controller of Patents, Designs and Trade Marks. There is a specific procedure in place.

Does the Minister of State agree that since 1963 a huge number of people have not received fees or royalties? Unless this massive Bill can ensure the payment of equitable remuneration to all those entitled to receive it in a businesslike manner it will not be effective.

We will deal with this issue at length later but, as the Deputy is aware, there are collecting societies which collect and distribute moneys to their rights holders. From the correspondence I have received from Deputies, among others, I am very much aware of the problems being experienced on all sides but, in this instance, we are dealing with a specific provision, presumption of transfer of rental right in case of film production agreement. In such cases there must be equitable remuneration for the individuals concerned. We will have ample opportunities to deal with the matter at length later.

The Bill seeks to strengthen the range of civil remedies available. What exactly is involved in this?

Section 122(1) reads, "An infringement of the copyright in a work is actionable by the copyright owner." We will deal in detail later, with the civil remedies specified.

It is an area about which people are very concerned. It is very important that the benefits accrue to those who have produced works when the Bill is enacted. It is also important that the law be accessible.

That is my main concern. Many Deputies are interested in sections 122 and 134, which goes to the heart of the Bill. My main aim is to ensure rights holders and artists are protected.

The Minister of State introduced the concept of equitable remuneration in amendment No. 21. Is this concept defined anywhere in the Bill? The Minister of State is not being fair and is failing in his duty in suggesting that we should not worry, that we should all calm down, that he will have some brilliant things to say when we reach sections 122 and 134. This matter goes to the heart of the Bill, the rights of those who own copyright and those who, without realising it, infringe copyright. What exactly is meant by "equitable remuneration"? When will it be paid? Will it be paid on the making of a judgment? If a company is sold on, the individual concerned may never receive it. It is irresponsible to introduce this concept in the full knowledge that the current system is not working. We know that to be the case because a case has been going on for years. It all hinges on what is equitable remuneration etc. I am disappointed the Bill was not more explicit in regard to what this means. We cannot deal with the more meaty sections without knowing the Minister's thoughts and how a decision will be made on equitable remuneration. When is it paid? Will copyright owners find that people are infringing copyright and then entering into months and, perhaps, years of legal action and the person may be dead by the time a decision is made. What might be equitable in 2000 might be grossly inequitable by the time the case is finished in 2004. I am disappointed the Minister has not more information on this whole area, given that it is the first chapter where it has appeared.

It is indicated that the Controller will also have a new role in the maintenance of the voluntary register of licensing bodies which will contain information such as scale of charges to be levied and the rights holders represented.

On that issue, we will come to the whole question of voluntary licensing later. Deputy Owen wants definitions of all sorts of things. I would remind her that the term "equitable remuneration" comes from the rental and lending directive. That is the language used in that directive. It will vary enormously depending on the facts of a particular case. It is not possible to devise a tight definition in all cases. Section 120 (5) states:

Subject to section 121, the amount payable by way of equitable remuneration is that which has been agreed by or on behalf of the persons by and to whom it is payable.

It stems from an EU directive and it is not as if we pulled this language out of the clouds. It has a sound basis.

The Minister is missing the point. We know, in practical terms, that this is what caused the 1963 Act to be utterly unworkable. The Controller, the way the office works and everything that has happened is an indication that it has not been working. We all know about the case that has been going on for the past 40 months where the disco owners and the copyright owners are in conflict. It was agreed that the matter would be referred to an arbitrator but between them all, they have not been able to sort it out. The Minister is right in that this is something that can go to the Controller but that system is not working.

There are problems, but to suggest that we should try to define this is impractical.

I am not asking the Minster to define "equitable", the actual amount, because it will be different in every case. I am asking him to make sure we have a workable system where some sort of chart can be devised as to what might be considered equitable in certain areas. Perhaps the Minister will come back to this later.

We are dealing with it specifically in relation to the rental and lending directive but we will deal with it in a broader way when we come to the licensing question.

If I can try to be helpful on this one, it seems that equitable remuneration has taken on a life of its own in some ways and people are taking different meanings out of it. Much of this has to do with whether somebody can demand payment before or after the rental happens or the music is played. The Minister said it is fair payment or something like that, but if that is all it means, and if there are not any time constraints as to when it can be paid, we can proceed on to the next section. The crux of the matter is whether something can be demanded in advance or paid after the event. That is tied into it also.

We will certainly deal with this, and what the Deputy is talking about would be in a licensing situation. This is all to do with the rental right in sections 119 and 120, and I would be glad to get to the heart of this issue of equitable remuneration. I know it is relevant to a great deal of documentation and I will be glad to deal with that matter as best I can later on.

Am I right in saying it means a fair return for work, as the Minister said, and that there are not any time constraints? There is no demand that money has to be paid before or after, as such?

The Deputy is right in that.

Question put and agreed to.
Sitting suspended at 4.05 and resumed at 4.25 p.m.
Question proposed: "That section 120 stand part of the Bill."

Subsection (8) reads

In this section "collecting society" means a society or other organisation which has as one of its main objects the exercise of the right to collect equitable remuneration under this section on behalf of more than one author.

Will collection societies have to be registered or licensed?

A later section provides for their voluntary registration.

Only voluntary registration?

We can debate that matter later.

Question put and agreed to.
Section 121 agreed to.

Amendment No. 85 is consequential on amendment No. 83, amendment No. 84 is an alternative to amendment No. 85 and amendments Nos. 85a, 86, 87 and 91 are related, and they may be taken together by agreement.

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.

That is a strong and considered statement. It requires such a statement because this is an extraordinary change in the normal law of evidence whereby the evidentiary burden is now essentially on the defendant.

The point of the law of evidence in this regard is that I can assert anything by way of affidavit if I cannot be subjected to cross examination on it. That is a major change. It is extraordinary that in a Bill relating to property rights we should have to distort the normal rules of evidence in this fashion. In view of the Minister's arguments in respect of the presumptions in section 134(3), Chairman, I can assert ownership to your land by way of summons and it is presumed that I am the owner of your land until you can prove the contrary. That is an extraordinary situation. The subsection states:

Except as otherwise provided in this section, where the subsistence of the copyright in a work is proved or admitted, or is presumed under subsection (2), the plaintiff shall be presumed to be the owner or, as the case may be, the exclusive licensee of the copyright, until the contrary is proved.

That is an extraordinary case of standing the normal laws of evidence on their head.

I listened to Deputies Perry and Owen earlier. The same type of submission was made to me. Deputy Owen referred to a case that has been under way for some time. I do not have any independent validation or independent submissions on this issue. Part of the problem is that, by definition, one is getting submissions from vested interests who wish to skew the presentation to suit their points of view. One or other of them is right but the problem is, how to judge.

One does not easily fool around with the normal rules of evidence. There are very few exceptions. The Criminal Assets Bureau can make certain sequestration in the overriding interest of the common good but to shift the evidentiary burden in this fashion in the straightforward evidential proceedings here is far reaching. I accept the Minister's comment, in relation to his amendments Nos. 83, 85, 86 and 87, that amendment No. 84 is an alternative and has the opposite meaning. He considered excising subsection (4), which I sought to do, but obviously he has decided to go this route. However, it is such a major issue that we need to hear more justification for it.

Anybody can make an affidavit but the requirement to be exposed to cross examination on it is greatly narrowed in subsection (4). It distorts the normal rules of evidence, a court can blast ahead regardless and there is no need to call witnesses. By all means, a person should be allowed to make an affidavit but he or she ought to be called on to defend it.

The Minister is right to link it to section 134 because they are connected to the presumption section. He has made a pre-emptive strike in recording the advice of the Attorney General and presumably he is right but it seems to me that constitutional questions arise from section 134(3). I know of no other area of property rights where it is sufficient to assert ownership and that is assumed to be the case unless the contrary is proven. The plaintiff in subsection (3) is, essentially, the person who says he or she is the owner and that is taken as sufficient unless the contrary is proven. That is a far reaching change to introduce in a Bill such as this.

In the area of criminal law I can understand why, in a limited number of areas, the burden of proof might be shifted. I am aware of the distinction the Minister has drawn between the burden of proof and the shift in the evidentiary burden here but it is a far reaching change. We heard submissions, if memory serves, from people such as John Gordon SC although I cannot recall if it was on behalf of the Irish Hotels Federation.

It was. I have what he said here.

I am concerned about this. It is a major shift. If rights holders cannot assert their entitlements other than by effectively changing the law of evidence, there is something seriously wrong with the way the system works. It is a major matter if nightclub owners and others have been evading their duties to rights holders in such a fashion that the normal laws of evidence cannot call them to account.

I have changed my mind numerous times in the last few weeks about whether section 134 is good and section 122 is superfluous, or whether they are both necessary or unnecessary. It is difficult to make a judgment on this matter. My concern is that the serious row about how the 1963 Act is working and being interpreted is not the best milieu in which to produce legislation. Nothing is happening in the current case. An arbitrator has been appointed but one side has alleged that the other does not appear to want to work with the arbitrator, will not provide information and will not answer letters. This must have coloured the way people drafting the legislation dealt with this thorny area.

I am unhappy with any legislation about which it can be alleged that it is introducing a concept that a person is guilty until proven innocent. I have considered sections 122 and 134; perhaps the Minister could state whether they were written at different times. Was his intention at one stage only to deal with the issue through section 122? This would have built into the legislation a way for a person to challenge the use of something that had copyright when the other side said they did not own it. Section 122 appeared to provide a legal mechanism under which one could produce one's evidence and provide an affidavit, etc. It appeared to tighten the mechanisms that were already available, but not working.

However, it appears that somebody then made a strong case for the inclusion of the presumption and then we had section 134. I may be completely wrong. I do not know if the sections, because of the circumstances of the Bill's gestation, the time it took to produce and all the matters that have arisen, were included at separate times.

Section 134 follows from the 1998 Act to which I referred. It was a short Bill.

The 1998 Act was an emergency provision because the Government was terrified Ireland would be listed by the WTO in some dreadful way.

That is not an accurate statement. It is a most unfair assessment of why that Bill was introduced. It was brought in for a number of reasons, the first being that it was the right thing to do in relation to rights holders. There were international pressures to introduce it, as there are international pressures to introduce this comprehensive legislation. However, there was no question of anyone being terrified. That is over the top.

Perhaps terrified is not the correct word; worried and concerned are probably better terms to use. Undoubtedly, there was a worry and a concern. It existed when my party was in Government. The concern was that we were moving towards a difficult situation with regard to the length of time it was taking to amend our copyright legislation and Ireland would be listed by the WTO as a country which did not have up to date legislation.

However, just because the provision was included in the 1998 legislation is not a good enough reason to include it in this Bill. Perhaps it is the right decision but Deputy Stanton and I discussed the matter at length before we decided to oppose section 134. Our main aim is to try to get some clarity from the Minister on his advice that he could change the situation.

Mr. Gordon, the senior counsel who made a submission to the committee, said the effect of the provision would be that any plaintiff who comes before the court claiming to be a copyright owner will be presumed to be the owner unless the contrary is proved. This fundamentally alters the ordinary rule that "he who alleges must prove". Mr. Gordon said this is a sensible rule and ordinarily a plaintiff will have available to him all the relevant materials, etc.

I understand the point of those who state that section 134 is essential in a case where people who are challenging whether there are ownership rights ask the other side to prove it. They are asked to go back and find the person who first had the idea of a song and bring them, or their mother or grandmother who might have been there when the person in question first started to doodle on the piano, to the court from Honolulu or Outer Mongolia. I understand it has reached the ridiculous stage where the current case will require many people to be transported to Ireland to state that they were there when the person decided to write the song or the words. This is unworkable and that is not the right way to go about it.

However, I am concerned about the criminal and civil aspects. I ask the Minister to be specific on this matter. Sections 122 and 134 are tied together, but section 134 creates a presumption of ownership. It states that the presumptions specified shall apply in any proceedings whether civil or criminal. People became very exercised about this because the concept of criminal law was being introduced. On the basis of the legal advice from the Attorney General, does it only involve the presumption of ownership and not the presumption of guilt? In that case, the use of the phrase civil or criminal is misleading because presuming ownership is not criminal. It would only become criminal if one was charged with such an offence under the Bill.

However, one will enter a case with one hand tied behind one's back. If I say that I do not believe somebody owns a copyright and I go to the courts, is it the case that I am presumed innocent? Am I automatically presumed to be guilty of an offence by the act of using the music when the ownership is presumed to belong to somebody else? Does somebody have to prove that, in my use of it, I was breaking a law? Can I say in my defence that I played a particular tune and I accept that somebody is claiming copyright, but a GAA club was running the function? Is it fair to say that somebody is automatically presumed to be guilty once the presumption of ownership is made? Does the Minister follow my thinking?

It is to deal with the presumption of ownership. The question of guilt would be a matter for the court. It involves the presumption of ownership specifically.

That seems unfair to the person who played the music but did not pay copyright dues and is in court trying to defend their actions. Their strongest defence will be already washed out of the court by the presumption. This puts a much bigger onus on the person who supposedly infringed the copyright. I have thought about this matter and I am trying to understand whether the Minister is suggesting - it may be a valid point - that section 134 has presumptions but section 122 gives the person who feels that the presumption should not exist the right to prove their point. Is that what it does? I would have thought section 122 should have come after section 134 in sequence. It would have been much easier to debate this if section 122 qualified section 134. That is why I think this was inserted after the Bill was written. Section 134 deals with presumptions and section 122 qualifies the time at which someone might challenge such a presumption and produce evidence that somebody did not own the work in question.

I do not know if I am as convinced as I was at the start that section 134 is as bad as I thought. Does the Minister think a change could be made to section 134 to make it less penal for those who say they believe the person does not own the copyright of the music they are playing? A great deal of logic has been advanced by the other side, in that one must assume someone owns something if it has their trademark or name on it. However, if a CD or tape had a made-up name on it which was not well known, such as "Kitt Productions", it would be presumed they owned it because it had their name on it, although they might be in breach of copyright themselves. That might be very different. I am sorry for wandering on this. I do not know how convinced I am by either side of the argument on whether this all needs to be removed. It is right to delete subsection (3).

I thank the Minister of State for his explanation of section 122(4). I had tabled an amendment that evidence be given on affidavit subject to cross-examination. The Minister of State said it is assumed there is an automatic right in any court case to have cross-examination. I need to be absolutely certain about that before I withdraw my amendment. An affidavit is submitted to the court and is not oral evidence. My understanding is that where section 122 was being invoked, the owner of the copyright would produce an affidavit signed by the person's mother, the person who was in the room when the song was written and the person who first recorded it. The affidavit is signed and notarised in the country of origin. I want to be absolutely sure the person producing the affidavit can be cross-examined in court. If the Minister of State tells me that is the case, I will withdraw amendment No. 85a.

Does the Minister of State wish to speak?

I will sum up afterwards.

I want to bring to the Minister of State's attention that the Opposition facilitated the passing of the 1998 Act, although we had reservations about it, on condition this Bill would qualify it. What is there to stop any person or company claiming to be a rights holder under what the Minister of State is proposing? Deputy Owen also referred to this. It seems that anyone could claim to be the owner if his name was on it.

What sort of rebuttal evidence could a defendant present? How will defendants gain access to evidence to show that someone claiming to own the copyright is not the owner, when all the material is on the other side? Like Deputy Owen, I am open in this regard, but we must get this right. As the Minister of State said, this is central to the Bill. We must tease it out properly and perhaps return to it the next day.

What would stop any person or company from asserting the rights of a copyright holder? What sort of evidence could a person present to refute the claim of somebody who was not a rights holder? What safeguards are there in the Bill for that?

Section 122(5) states "Hearsay evidence may be accepted for the purposes of any hearing under subsection (4)”. Will the Minister of State comment on that?

I appreciate the concerns of members, who have obviously thought about this, and that Deputy Owen has changed her mind. This goes to the heart of the Bill. I appreciate what Mr. Couglan said. He was with a deputation of hoteliers.

It was Mr. Gordon.

The delegation made all sorts of cases and he addressed the committee. My concern is that we deal with the situation on the ground. As I said, the practice of defendants simply denying that composers or authors own the copyright in the music concerns me. Members referred to that. The statement by a Supreme Court judge that the sworn affidavit by a rights owner was not sufficient also concerns me. It is the practice that people who were in the recording studios when a song was created are flown in.

I acknowledge it is a major shift in the law and the burden of proof to move the presumption that copyright subsists with the rights holder or a collecting society. It puts the onus on the defendant to prove that the artist does not own the copyright. However, in response to that, the artist would make a reasonable statement and the court case would then deal with the situation. Once the evidentiary burden is overcome - that is, the defendant shows some substantive argument that the plaintiff's claim is unjustified - the trial then proceeds in the normal way.

How can he do that?

By cross-examination, etc. That is my advice from the Attorney General. There is no doubt that is a significant change in the law.

How do they do that?

The Minister of State should be more specific about that. It is not clear what he means.

On the same point, I did not understand section 122(4) to provide for a situation where there would be cross-examination on the affidavit, except where there is conflict. Otherwise, the affidavit is sufficient. The court will decide, as appropriate, on the basis of the affidavit itself, unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony. The Minister of State's earlier answer to Deputy Owen's question——

Was not right.

——was not entirely the full picture. As I read it, it can be decided purely on the basis of affidavit under subsection (4), but perhaps I am wrong.

The rebuttal of evidence might include evidence that a work was out of copyright, for example, over the 70 years, that it was an expression of an entity of folklore or that they held a licence to use the work in a particular way from a third party who was the rights owner. For example, if points like this are raised with credibility, subject to the judgment of the court, the trial is then likely to proceed in the normal way, with cross examination and the burden of proof falling on the plaintiff on the standard of the balance of probabilities. In the examples brought to my attention, the defendant has been abusing the legal position as it stands and I believe that is generally accepted.

A case was made about improving the position with regard to the rights owner. This goes to the heart of the Bill because we are concerned here with copyright, various rights and balances of rights. For example, the individual artist must be protected. The Attorney General has advised that this is fundamentally sound. The effect of sections 122 and 134 is to establish a linkage which will give reasonable and understandable protection to rights owners.

While I understand the concerns expressed by Deputies that we are shifting the balance from the defendant to the plaintiff, I am convinced it is necessary not only in this case and for the sake of the music industry and individual artistes, but also for the software industry, which we all agree is so important for jobs in this economy. It is vital it has certainty with regard to the ownership of copyright. In consequence, the connection between sections 122 and 134 is one of the most important elements of the Bill.

We debated this matter in the Seanad and Senators expressed concern. However, I ask Deputies to follow my recommendation on the course of action to be taken with the various amendments and, in view of this, perhaps those who have tabled amendments will reconsider them.

What about the point on cross examination? The Minister of State says it is understood, but the section more or less provides that the affidavit will be final unless the judge sees argument and is satisfied that there is a point of conflict. However, a judge can decide that he does not believe there is a point of conflict and it may be necessary, therefore, for one side or the other to hold a cross examination to prove it. I am not a lawyer, but I understand that an affidavit in court is accepted.

I can see the difficulties involved, but our job is to tease out the issues and to make a decision. It has been put to me that in this hi-tech age of computers and the information society, if rights holders are doing their job properly they should have very little difficulty in proving ownership of copyright. What is the difficulty? Is it the case that this legislation is being introduced because certain rights holders are unwilling to take the trouble to prove ownership of copyright? What is the difficulty with proving ownership of copyright and following the paper trail back to the original author and being able to prove it?

I am informed that the rights holders may not hold 100% of the copyright, for example, they may not hold 100% copyright of all the music played in a venue, but may only hold the rights to 80% or 90%. How can we deal with that issue? What is meant by hearsay evidence?

It will be necessary to return to section 122 because of the need to consider what has been debated here. It would be better to adjourn the meeting rather than press ahead because this is the meat of the Bill and I will have to take advice on what the Minister of State has said.

The Minister of State is satisfied about the constitutionality of these provisions. Far be it for me to cast aspersions on the Attorney General, who is an eminent person, but lawyers differ. A senior counsel made a submission to the committee and we have received other legal submissions from all sides. In his submission, Mr. Gordon referred to the Supreme Court decision in the 1999 case involving National Irish Bank Limited, where the court reaffirmed the presumption of innocence guaranteed under Article 38.1. of the Constitution. He went on to advise that the effect of section 134 is to turn the presumption of innocence on its head, and while there may be circumstances where it is legitimate for the Oireachtas to interfere with the presumption of innocence, etc., that would only arise where the interference is not disproportionate to the end.

Did the Minister of State look at the way the UK handled this? It passed a Copyright Designs and Patents Act, 1988, which avoided the imposition of any general applicable presumptions as to the subsistence and ownership of the copyright. Under order 14 of the rules of the Supreme Court of England and Wales, there is specific provision in relation to copyright infringements under which a plaintiff may bring an application grounded on an affidavit for summary judgment against the defendant.

I have concerns about software because I believe it will be a very difficult sector to police. Could it not be argued that section 122 is solving the serious problem of copyright owners having to bring many people to court to prove ownership by shifting the allowance to an affidavit? I consider that to be the kernel of the problem in cases involving proceedings under the existing law, where the onus of proof is on those who claim that people have breached copyright. I assume that if the law as it stands provided people with the right to go to court with the affidavits properly signed this problem would have been solved. Is it necessary for the provisions of section 134 to be so severe when section 122 provides a proportionate and necessary approach to preventing groups from denying the ownership of copyright by another and insisting that proof of ownership be demonstrated?

It is alleged that these provisions go further than the TRIPs Agreement. Part III of that agreement, headed Article 50, section 3, Provisional Measures, says that the judicial authorities shall have the authority to order prompt and effective measures, etc. Subsection (3) goes on to provide that the judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder, that the applicant's right is being infringed or that such infringement is imminent and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.

That sounds as if the TRIPs agreement states that they would still like to see a law which requires the people who are claiming copyright ownership to provide evidence. Am I reading that correctly? That is just one piece of that Part III, which the Minister of State, Deputy Kitt, claimed earlier is the reason behind section 134.

The case made to us by hoteliers and those who would prefer a less onerous presumptions clause is that section 122, subject to the amendments, deals adequately with any concerns on the part of the State as to its obligations under the TRIPs agreement. The proposals in section 122 suggested are entirely consistent with Articles 42 and 43 of the TRIPs agreement. However, the presumptions currently in place under the 1998 Act and proposed to be continued under the 1999 Bill go much too far.

Did the Minister of State find himself in the position of having to frame section 134 based totally on the utterly ridiculous situation which had emerged for the copyright owners who found themselves at the end of an appalling case being made by the disco owners who just would not come to the table and reach agreement? The sorting out of bad cases does not always make good law. Is that the thinking behind section 134?

To change the presumption of innocence is a drastic move. I ask the Minister of State to guide us. Is there a corpus of decisions in the courts in this regard? I am referring to the difficulty which rights holders claim they have in asserting ownership against an impervious entertainment industry, for example. Why can the nightclub owners not be made amenable? This is an area of fairly arcane law but it is not exceptional in many ways. I find it difficult to understand why it is necessary to change the normal rules of evidence in order to make the nightclub owners, for example, amenable. I do not know to what extent this has been tested in court. Is there a history of the Judiciary telling collection societies they must go back to first principles and prove it, that the court does not accept that, for example, Bruce Springsteen wrote a song and they must come into the court with his birth certificate and the room where it was written, etc.? Is that blarney which is being sold to us or is there a basis for it?

I find it difficult to put my name to changing the rules of evidence in the case of property. If the Minister of State tabled a criminal argument that in the interests of society it is necessary to change the burden of proof, depending on the gravity of the situation I would consider it. However, in the normal course of civil law and the assertion of property rights I find it difficult to accept that it is necessary for the committee to change the tried and trusted rules of evidence.

I concur with the views of members. Having debated the issue, I suggest we adjourn without finalising a decision. That would give me a chance to deal with any issues with which I have not dealt with today. It is a serious step but my view is that it is the right one. It took me a long time to reach that view.

The most fundamental question related to the reasons for sections 122 and 134. The answer is that there is a natural connection between section 134 on presumption and section 122 which deals with court proceedings.

On the question of the origin of section 134, the Supreme Court decision certainly led to it. That was based on an interpretation of the rule of the superior courts - Order 39, Rule 1 - which was interpreted to mean that where a party to an action had a bona fide desire to cross-examine an opponent, this desire had to be honoured. The advice is that the Oireachtas has the right to legislate on such a point. It is conceded that this establishment of presumption is a major step, as I said, but it is addressing a major unusual problem.

The Attorney General's advice is clear; this measure is legally and constitutionally sound. Mr. John Gordon, SC, is obviously entitled to a contrary opinion but I rely on the Attorney General's advice. The courts may eventually have to decide.

The current case to which Deputy Owen referred shows the need for serious measures to overcome this barrier to justice for rights holders. I keep repeating that this must be the primary concern. I accept that we are taking fundamental decisions here. Members may need time between now and when the committee meets next, but I hope they will make that decision.

Amendment No. 85, which is a Government amendment, amends section 4, preserving the right of the court to entertain evidence as to the ownership of copyright in affidavit but makes this subject to the terms of section 134.

With regard to Deputy Rabbitte's amendment, amendment No. 88, it might help to state the following.

This relates to hearsay.

Yes. I want to respond in order that the Deputy can think about this between now and the next meeting. The idea of section 122(5), which Deputy Rabbitte's amendment seeks to delete, was to allow hearsay evidence to be taken in preliminary hearings under section 122(3) now deleted by amendment No. 83. Looking at the matter again, it appears to me that the present text of subsection (5) may need to be amended to take proper account of the deletion of subsection (3) and may even need to be deleted for technical reasons. I propose to take this matter up with the Office of the Attorney General.

That loosens up the whole matter.

Regarding the wording of section 122, this was devised as a trial management measure under advice of the Office of the Attorney General. We can have the text of the amended section 122, as a whole, reviewed by that the Attorney General to eliminate any surviving technical problems. The Department is clear as to its intention in the matter.

My position is that this is a major shift but, as far as I am concerned, if we can do one fundamentally important thing in the Bill it should be to safeguard rights holders. Whether it is artists in the music industry or the software industry, it is important that we do this. I strongly recommend to the committee that we do this.

I appreciate that genuine issues have been raised. Even from my point of view, it might be helpful if the committee adjourned to allow me and the other members to deal with those outstanding issues between now and the next meeting.

On the hearsay point, it is most unusual to permit hearsay evidence. To return to Deputy Owen's point in a different regard, it means obviously that one cannot cross-examine on hearsay evidence. Why did the Minister of State say he is arguing for its retention?

I said that the current text may need to be amended to take proper——

I understand the position now. I apologise, I was speaking to a colleague when the Minister of State outlined it originally.

I will take advice on that from the Attorney General, and will report back to the committee.

In light of what the Minister of State just said, it might be helpful if a briefing could be held in his Department with himself and his officials to deal with the many complex questions which have arisen from the debate on the Bill. Will the he arrange to hold a briefing session on Tuesday morning?

I will do that.

Such a session could prove very helpful.

The Minister of State read a lengthy statement and it will be some time before it becomes available to Members on the computer system. Would it be possible for him to supply us with copies because one can often understand these things better when they are written down? The Minister of State may have written some notes in the margin which could be removed before the document is copied but it would be very useful, particularly in coming to terms with the points of resonance between sections 122 and 134.

I will supply the note, perhaps in a somewhat amended form. I will provide details of the main substance of what I said. I will ask my officials to deal with that tomorrow.

I propose that we now adjourn. I thank the Minister of State and his officials, Deputies Stanton, Owen, Rabbitte and Lenihan and others for their attendance. As agreed, the Select Committee will meet again on Tuesday, 22 February in G5 from 5.30 p.m. until approximately 7.30 p.m. to resume its consideration of the Copyright Bill. Members are reminded that the Joint Committee will hold a joint session with the Joint Committee on Health and Children on Tuesday, 22 February to discuss the natural health product, St. John's Wort. This meeting is scheduled to commence at 3.30 p.m. and conclude at 4.45 p.m. in G2.

Is the Chairman in a position to supply free samples of St. John's Wort to keep us going on Tuesday next?

Members should bring flasks and sandwiches.

The Select Committee adjourned at 5.23 p.m. until 5.30 p.m. on Tuesday, 22 February 1999.