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

Debate resumed on amendment No. 83:
In page 71, lines 36 to 41, to delete subsection (3).
-(Minister of State at the Department of
Enterprise, Trade and Employment).

I remind members that 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. Amendments Nos. 83, 84, 85, 85a, 86, 87 and 91 are being discussed together by agreement.

We had a lengthy discussion the last day on section 122 and its connection with section 134. A number of issues were raised by members which I would like to deal with.

Deputy Rabbitte raised the question of whether there was a clear history of rights holders having difficulties in proving ownership of copyright works or of judges disbelieving collecting societies which assert ownership of particular works. I assure members there is a history of plaintiffs being faced with unsubstantiated blank denials, even of such basic matters as the existence of copyright in contemporary works.

The problem is that where such denials are made, the Irish law of evidence, as it currently stands, makes it impossible to overcome even the most obviously vexatious denial, except by the provision of live witness evidence should the alleged infringer insist on this. In the case of PPIv. Cody, 1988, the Supreme Court found that, under the rules of the superior courts, where the production of a witness is bona fide desired by one party to an action of another this desire must be satisfied. The court also said it was not necessary for the party wanting the witness to be called to show actual evidence casting doubt on the contents of that witness’s affidavit. In other words, whether a judge believes the claims of a rights holder or not, he or she will be under a very strong onus to allow the calling of live witnesses, even where comprehensive affidavit evidence from the potential witnesses is before the court.

I understand a case is being prepared under the current law which is encountering precisely these difficulties and which, if it is prosecuted to its conclusion, is likely to cause the collecting society concerned no end of difficulty, which will be caused in part by the need to overcome blank unsubstantiated denials. It is not acceptable this situation should continue under the new law.

Deputy Owen asked whether a measure along the lines of section 134 was required by the TRIPS Agreement. I take the Deputy's point that there is no specific requirement in the agreement for Ireland to bring in section 134. The agreement imposes a general requirement on subscribing states to put effective accessible remedies and penalties in place to protect intellectual property rights. Since the situation we have been discussing under the present law is clearly a substantial barrier to justice, standing in the way of rights holders and prosecutors in copyright cases, our general obligations under the TRIPS Agreement require that we deal with the matter decisively and effectively. This, I believe, is what section 134, along with the amended section 122, will achieve.

I emphasise to members that the legal advice I have received on this question is that the practical effect of section 134 will be to ensure that if an alleged copyright infringer or offender wishes to defend a copyright action, he or she will have to show some evidence or reasonable argument upon which to base their denials of a rights holder's claims. Rights holders and prosecutors will still have to prove their case to the required standard of proof, that is, the balance of probabilities in civil actions and beyond reasonable doubt in criminal trials. I am further advised by the Office of the Attorney General that this shift in the evidential burden is consistent with legal and constitutional standards.

In view of this, and considering the serious difficulty with access to justice which section 134 in combination with section 122, incorporating the Government's amendment, seek to address, I hope the committee will accept the Government's proposals on section 122 and that it will not oppose the retention of section 134.

The Minister of State said that under section 134 the person who claims ownership will have to prove something. Will he repeat that sentence? That sounds as if the presumption is not total.

I will repeat the last few lines. The legal advice I have received on this question is that the practical effect of section 134 will be to ensure that if an alleged copyright infringer or offender wishes to defend a copyright action, he or she will have to show some evidence or reasonable argument upon which to base their denials of a rights holder's claims.

The next bit said that the owner would also have to.

Rights holders and prosecutors in criminal cases will still have to prove their case to the required standard of proof.

With respect, the whole point of section 134 is that one is presumed to be the owner. That is a given, it is on the table. All a court case will decide is whether the person who used the material without access to the copyright owner did so rightly or wrongly. Perhaps they had the right to use it without paying copyright because a football club was involved in the function where the music was used. My reading is that a copyright owner only needs to produce evidence if they go to court under section 122. Section 134 makes clear that whoever claims presumption of ownership has full presumption. It states, "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 means it is not up to the plaintiff to prove it but that the defendant has to prove the person does not own it.

We are talking about a situation where it goes to a normal trial. An evidential burden is a more limited form of burden, in which the party to an action is required to bring forward some evidence or someprima facie case before a case can proceed to substantive trial. A burden of this nature will always lie on the plaintiff and prosecutors, who will have to show they have substantial evidence to back up their claims if the trial is to proceed very far. This will not be changed by section 134.

I think we are back to my concern about why section 122 precedes section 134. Section 134 contains presumptions and section 122 contains the remedies. Section 122 deals with a court action by someone challenging that presumption. Either I am not understanding the import of section 134 or the Minister of State's note is implying something it should not, which is that the plaintiff would still have to show proof. They only have to show proof if the action goes to trial.

I tend to agree with Deputy Owen that the note does not help us much. I thought the purpose of the section - although it might be the exact opposite - was to establish that copyright was presumed to exist unless the contrary was proved. The purpose in the three sections is that, even where it had to be proved and was admitted or where, under subsection (2), it was assumed or presumed to subsist, the plaintiff is assumed to be the owner.

Like Deputy Owen, I am somewhat confused about the note. The only question I had intended to raise was whether the Minister of State is satisfied about the constitutionality of the provision, which involves a shift in the evidentiary burden. On the last occasion, we discussed other examples of where this is required. I understand there are sections of industry which, as the Minister of State indicated, are tortured by people using the requirement to prove ownership as a delaying tactic. If the Minister of State is placing the fact on the record as his assessment of the situation, I accept that. However, I would like him to address the question of constitutionality. With regard to the point raised by Deputy Owen, in my opinion the note is unclear.

It was necessary to place the presumptions in a particular part of the Bill.

They are contained in section 134.

Yes, at Chapter 12. Everyone is clear about the links involved.

To return to Deputy Rabbitte's point about constitutionality, the advice of the Attorney General is that the provision is sound. I accept that people may hold different views, but we are satisfied with the advice of the Attorney General from a legal point of view.

With regard to what is happening in practice and the difficulties faced by rights holders when defendants issue blank denials, therein lies the real problem in relation to section 134. That is why I am standing firm in terms of the position I set out last week. I accept that there are a number of links between the Deputies' amendments and those in my name. Some will be accepted while others will not. However, even in light of the additional information I supplied, that is basically as far as I am prepared to go at present.

I appreciate the Minister of State's difficulties in this regard. It seems that the problems that rights holders and others have is that it is not possible for rights holders to easily prove their ownership of copyright. If my reading of this is correct, it could happen that someone might deny that another person owned copyright and the matter would end up in court. Affidavits would be presented by each side and a judge would have to decide whether there was a sufficient conflict in the evidence to send the matter for trial. As a result the rights owners would be obliged to prove that he or she owned the copyright and, if I understand it correctly, they would have to resort to oral testimony. That would mean that we are almost back where we started.

I am interested in ensuring that a balance is introduced to this. The difficulty is that the defendant may find it difficult to prove that someone else does not own copyright. If the person who presumes to own copyright cannot prove ownership, how much more difficult will it be for the individual opposing them to prove that they, in fact, do not own it?

There seems to be a disproportionate level of support for——

I wish to run through the sequence of events again because this is an important point. I do not agree with the Deputy Stanton's point that we are returning to the position from which we started. The intention of section 134 is to place on defendants, in this instance these people are the alleged copyright infringers or offenders, an evidential burden the effect of which will be to oblige them, if they wish to defend a copyright based action against them in court, to produce some basic evidence - that is a departure from the terms of the 1963 Act - or at least a reasonable argument as to why the allegations against them by the plaintiff or prosecutor might not be justified, rather than allowing them to rely on mere denials to place the entire burden of sustaining the case on the other side. That fundamental change will alter the environment of copyright cases. As far as I am concerned, we are giving rights holders the best possible protection.

That is the base from which we are starting and we are placing a new responsibility on the defendant. If he or she can discharge that limited burden, the case can proceed to trial. At that point, the burden of proof will lie squarely on the plaintiff or prosecutor. This is not an unreasonable requirement, given the particular circumstances which obtain in copyright cases.

It is to deal with the point Members raised on the last occasion about people being obliged to fly in experts from abroad. Given the structure of the music industry, a rights owner might be obliged to fly in members of his or her band or the person who operated the recording studio to give evidence. By placing that additional burden on the defendant at the start of the process, we are at least levelling the playing pitch. The Deputies and I are trying to achieve a balance between the defendant and the plaintiff. From the point of view of basic justice, the playing field will be levelled and responsibilities will be placed on the plaintiff. The process is being adjusted at the initial stages but, in my opinion, it will level out.

The Minister of State is making great efforts to ensure that the provision is fair and we are doing the same. What kind of evidence can a defendant obtain in these circumstances? It will be extremely difficult for a defendant to prove that someone else does not own copyright. What examples can the Minister of State provide in respect of the evidence which might be produced?

Would they be obliged to have someone else appear to say that they wrote it?

One of the examples might be that if it was traditional music there would be no copyright involved. We discussed this matter previously in the Dáil. I may be able to provide further examples in that regard.

Section 122 details how a court case will be conducted in light of the presumptions contained in section 134. Let us consider the case of a person who is alleged to have used a piece of copyrighted music which the plaintiffs in a case say they own. Under the legislation, they are presumed to be the owners once they have the requisite labels, marks, etc. I wish to ask a number of questions in that regard about subsection (6) and succeeding subsections but I will leave them until later. To return to the case in point, the person who is presumed to own the copyrighted work will enter the court one step ahead of the person who is being accused of using it wrongly. How does the person who is accused of misusing copyright unpick the accusation? The only thing he or she can do is to submit an affidavit and this would require very definite evidence. Section 122(4) states that "Where an appropriate court makes an order under subsection (3) it may direct that evidence in relation to ownership of the copyright be given on affidavit and the appropriate court may decide the issue having considered any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the appropriate court may order that oral evidence may be adduced". To satisfy the court that there is a conflict, the defendant must produce something which can persuade the judge that there are conflicting claims and say to the plaintiff, for example, "Hold on a moment. You say you own the copyright but the defendant says he was present when Joe Soap wrote the song and sang it". Such a thing is not going to happen. How can we guard against a David and Goliath situation where "Goliath" claims that because a song is recorded by Sony or some other major company, that company is presumed to own the copyright of the song? How can a small hotelier or disco owner who is accused in such circumstances protect him or herself?

One of the objects of the Bill is to prevent spurious challenges to copyright levies or charges. Nevertheless, one cannot separate some of the fundamental sections of this Bill from one another. Section 17 introduces the concept of primary and secondary copyright ownership and gives them the same value. Section 37 deals with equitable remuneration, and the Minister's amendment to this section is not sufficiently qualified. He must re-examine this section. Sections 122 and 134 present difficulties and section 168 introduces the possibility of registering licensing bodies. These sections are parts of one whole. I would accept the retention of section 134 provided other protections were built into the legislation to give a proportionate onus and balance. These five issues - the extension of secondary rights, the absence of a proper definition of equitable remuneration because of the Minister's refusal to accept our amendment which would have enabled equitable remuneration to be decided by the controller, section 122, section 134 and the question of the registration of licensing agencies - must be considered together.

If the Minister can assure me that the combination of these sections restores balance to the legislation, our amendment will not be necessary. Can he assure me that in re-examining sections 122 and 134 he will look again at the question of how equitable remuneration is to be decided and ensure that it will be fair to both sides? There should be a mechanism to ensure that equitable remuneration can be collected from people who have gone out of business, for example. By including section 134 the Minister has twisted things in a disproportionate manner. I accept that the other way was also disproportionate but I would like to hear the Minister's views and the advice he has been given regarding putting mechanisms in place to restore balance. I will not press the amendment on section 134 - I do not necessarily wish to see the subsection totally removed although I not want to see it totally retained in its present form - if the Minister gives me assurances on some of the other sections.

Deputy Owen has returned to issues already discussed and signalled other areas of concern to her party. I accept that she is trying to achieve balance and I want to do the same. It can be difficult to achieve that balance. Deputy Owen has been very honest in saying she changed her mind on a number of issues between one committee meeting and another. We all face such dilemmas.

It would be wrong for me to open a debate on the question of what I can and cannot do. However, I will try to achieve the same balance which Deputy Owen seeks. The positioning of the issue of resumptions between remedies and penalties is almost accidental. This positioning was probably intended to give it prominence. This should not present a major problem once we understand the linkage that is there.

I am trying to change a from a situation where a defendant can deny that copyright subsists in a particular song. Deputy Owen asks what evidence could a defendant be expected to produce in support of that denial. I gave the example of traditional music. A defendant could say the copyright was owned by someone else or that the work was out of copyright. The Bill does not move the balance too far. Denying subsistence of copyright and providing basis for that denial does not require proof. Deputy Owen and I agree on the need for balance.

I will do my best to deal with the other issues to which the Deputy has referred but it would be wrong of us to open up a broad discussion when we are trying to make progress.

I appreciate what you have said, Minister. Is the amendment being pressed?

Will the Minister provide more examples of reasonable denials which would be acceptable? He gave the example of traditional music, which might be impossible to prove or disprove.

Other examples might be where copyright belongs to someone else who has given permission for the use of the work, where a song is out of copyright or where the defendant claims ownership of the copyright. These claims would be put to the court to decide whether the evidential burden is cleared on the basis of the facts of the case.

Would it then be up to the court to decide the matter? Could the court ask for oral evidence from both sides?

This might involve bringing witnesses from abroad. Does the Bill include a provision to restrict the level of charges which rights holders can make?

This matter will arise later in our discussions.

Amendment agreed to.
Amendment No. 84 not moved.

I move amendment No. 85:

In page 71, subsection (4), lines 42 and 43, to delete "Where an appropriate court makes an order undersubsection (3) it” and substitute “Subject to section 134, where in an action for infringement of the copyright in a work the defendant does not admit that the plaintiff is the owner of the copyright the court”.

Amendment agreed to.

I move amendment No. 85a:

In page 71, subsection (4), line 44, after "affidavit" to insert "subject, where necessary, to cross examination of the person giving the evidence".

The wording of the section may cause confusion. Subsection (4) states that the appropriate court may direct that evidence in relation to ownership of the copyright be given on affidavit and may decide the issue having considered any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony. Can this be taken to mean automatically the affidavit presented by the other side or are we still talking about the affidavit of the copyright owner?

The Minister of State said that the amendment is superfluous as there is reference in the section to the hearing of oral evidence but this is not automatic. He should, therefore, consider including the words "any replying affidavit" in line 45 after the word "affidavit". It should be made clear that the judge is under an obligation to consider the affidavits of the plaintiff and the defendant and must base his or her decision on their oral evidence. Subsection (1) reads:

In an action for infringement of the copyright in a work under this section all relief by way of damages, injunction, account of profits or otherwise is available to the plaintiff as it is available in respect of the infringement of any other property right.

In addition, subsection (3) has now been deleted. Is the Minister of State satisfied, therefore, that the wording of the section makes it sufficiently clear that the judge is obliged to hear a replying affidavit? The amendment would ensure the judge bases his or his decision on oral evidence rather than on two pieces of paper.

The Minister of State should be brief as the amendment was discussed with amendment No. 83.

If the Deputy agrees I will ask the parliamentary draftsman to look at the section again to determine if the amendment suggested would improve it in any way. The Deputy wishes to ensure there will be cross-examination. I am satisfied that this matter is dealt with in the last two lines of the section——

That will only happen after the judge has decided that there is a conflict. How will he or she come to that conclusion?

I will ask the parliamentary draftsman to examine the points made by the Deputy and if they stand up to scrutiny we will do something about it.

Amendment, by leave, withdrawn.

I move amendment No. 86:

In page 71, subsection (4), line 44, to delete "appropriate".

Amendment agreed to.

I move amendment No. 87:

In page 71, subsection (4), line 48, to delete "appropriate".

Amendment agreed to.

I move amendment No. 88:

In page 72, lines 1 and 2, to delete subsection (5).

This amendment relates to the acceptance of hearsay evidence. I did not hear the Minister of State expressly address this point——

May I repeat what I said last week? I said that subsection (5) which the amendment seeks to delete would allow hearsay evidence to be taken in preliminary hearings under subsection (3) which has now been deleted by amendment No. 83. I also said that in looking at the matter again it appeared that the text of subsection (5) may need to be amended to take proper account of this and may even need to be deleted for technical reasons. I propose to take the matter up with the Office of the Attorney General before Report Stage.

Amendment, by leave, withdrawn.
Section 122, as amended, agreed to.
Section 123 agreed to.
Question proposed: "That section 124 stand part of the Bill."

Paragraph(a) reads: “after the construction of the building has begun, so as to prevent it from being completed, or”. I am aware that the word “construction” is currently being looked at in the High Court. At what point does construction begin? If someone is found to have infringed copyright can he or she be stopped at the point where they have purchased building material or marked out the site? A large sum can be invested prior to construction of a building.

It is my understanding that an injunction may not be issued to prevent a person from completing a building. I will have the matter looked at again by our legal advisers.

I understand this is a big issue in a High Court case in which one of the parties is claiming that the marking out of the site in question marked the beginning of construction of the building.

This section which has been taken from the 1963 Act has never caused any problems. The question raised by the Deputy may not be directly related to copyright.

Question put and agreed to.
Sections 125 and 126 agreed to.

I move amendment No. 89:

In page 74, lines 7 to 9, to delete subsection (4).

This section deals with witness protection. I have a difficulty with importing a principle in straightforward civil actions that is more analogous with a very grave criminal law where the names of informers have to be protected for reasons of personal safety. I have a difficulty believing that the section has to be so broadly framed as to provide the level of protection to the deponent envisaged by subsection (4).

This is a strictly limited witness protection measure. The purpose is to protect the identity of persons such as employees who might bring evidence to a rights holder or to his or her representatives of an infringement of copyright by their employer. Where the rights holder requires a search warrant to secure evidence of this infringement subsection (4) will allow him or her to give evidence of his or her belief that infringing material is present on particular premises based on information from an informant without revealing his or her name.

It was represented to me that such a provision is particularly important to allow rightsholders to obtain search warrants against companies indulging, for example, in software infringement where employees would be subject to an understandable fear of dismissal should they do their public duty in the fight against copyright infringement. I realise this provision amounts to a limited admission of anonymous hearsay in copyright cases.

This procedure applies only to applications for search warrants in copyright infringement cases. It will not apply in substantive actions for infringement of copyright where there would be no provision for witness anonymity. Should a search, consequent on a warrant secured in part on the basis of evidence of this sort fail to produce any concrete evidence of infringement, no substantive action could proceed and under section 127(5). A rightsholder who had obtained a warrant might find himself in receipt of an action for damages from the target of the search should their actions be viewed in retrospect as malicious.

Even in the limited circumstances of an application for a search warrant, it would remain a matter for the courts to determine the weight it should attach to evidence based on anonymous hearsay information. There would be no question of obliging the court to accept such evidence contrary to its own judgment. Conscious of my other responsibility for labour affairs I am aware the Deputy has a related Bill before the Dáil at present. I hope I have clarified the position.

Do I understand that this section may only apply in respect of a search warrant if, say, there is a tip off from an employee in the company or whatever? In so far as it relates to the granting of the search order this protection applies but if there is a substantive action the normal rules apply?

The Deputy's interpretation is correct. There is no question of allowing this in substantive actions.

Deputy Rabbitte is taking an interest in this matter separately in respect of the whistleblowers legislation. What is the position where an anonymous tip-off to a rightsholder proves to be wrong? Does the anonymous person enjoy the full protection of law? What is the position in the event of an action for damages being brought by a person, whose company had been damaged by a malicious employee trying to bring opprobrium on his own company, who stays on and remains paid by the company? For example, if Conor Lenihan is informing on Fianna Fáil - which is most unlikely - maliciously from within the party and if the party wants to protect itself against this opprobrium, can it take a legal action against the rightsholder who took the action and an action against the person who gave the bogus evidence to the rightsholder?

Subsection (5) would allow Fianna Fáil to take an action against Conor Lenihan in that case. I made the point in my opening remarks that I was anxious to ensure there was a safeguard in the event of somebody making a false allegation. I think that is correct.

Effectively, anonymity disappears for the person.

This provision ensures that if people make malicious allegations they are dealt with.

On Deputy Lenihan's point, does the informant lose the protection of anonymity in a case where his action was groundless?

Does the Minister of State see the point? We know the rightsholder could be unfairly influenced by an anonymous informer. In the event of malicious invention occurring I presume the witness, as in a witness protection programme, enters the programme and gives his evidence on the basis that he will remain anonymous. If it has been proved that the protected witness, whose identity is not disclosed in the trial, is an outright liar, surely there must be some recourse under the law to have that person prosecuted for the malicious allegation. Obviously, that is the punishment of the rightsholder who pursues a fallacious claim.

I am trying to think of a practical situation. Certainly the burden of proof will fall on the applicant-rightsholder. I cannot imagine that the examples put forward are practical. The burden of proof would be on the rightsholder to prove the circumstances.

The point being raised is this. Suppose an employee, under the protection of subsection (4), causes the authorities to seek a warrant for search and invasion of premises etc. and let us suppose it was a wild goose chase and a deliberate misleading of the authorities, for malicious or other purposes. Against whom is the action taken for damages? If my door is kicked down and my records are taken away or looked through or goods are sequestered, against whom do I take the action? Does the informer in this case get away scot-free and against whom is the action for damages taken? If it was a software infringement and since Mr. Bill Gates owns the world, would the action be taken against Mr. Bill Gates or the informer who was malicious in the first place?

It would be taken against whoever made the application. I suppose the rightsholder would have to face the consequences. I have the feeling that some of the comments being made are as a consequence of the wider whistleblowers' charter which would be outside the area of copyright.

On a different issue, in subsection (1) I assume that "copyright in a work" applies in the plural also. It has been brought to my attention that, perhaps, we should have included in line 24, after "being" the words "or are likely to be" hawked, carried about or marketed. That may be too broad but the Minister of State might look at it. What would reasonable grounds be in this instance? I assume the reference to "infringing copies of the work", means a single copy and that one does not need to have more than one copy of the work to be infringing. I assume that "articles specifically designed" means one article, and in respect of "a protection-defeating device" that a person need have only one device to contravene this section. These are small points but it may be better to clarify them now.

I wish to raise some concerns that have been expressed about this section. Under the 1963 Act where a copyright infringement in a public place is detected - the language is the same here - the copyright owner has to swear the information so that the District Court judge can issue a search warrant. That procedure probably has not worked in the past because often the copyright owner is not the person residing in the location where the infringement is taking place. For example, a person who has developed software and has got the copyright on it who is living in India, Pakistan or America could not be sent to the District Court to swear an order so that a warrant can be issued because he or she is not living here. That procedure is not workable.

Did the Minister consider including the words, "where the owner or his or her agent or representative in a work applies to the District Court"? That would be a practical way to make this section work. We are getting to the heart of the policing of this legislation, and we have raised this issue when discussing a number of sections. Will there be a library policeman or a video recording policeman at Deputy Rabbitte's door? If one of the mechanisms allowed for in the section to protect people whose copyright is being infringed is that they can quickly apply to a District Court judge to get a search warrant, it had better work, otherwise the Minister of State will be in trouble, and he has not really helped the people who have suffered under infringements of the law up to now.

I did not table an amendment to the section, although when listening to the submissions I jotted down the point Deputy Stanton raised concerning where there are reasonable grounds for believing infringing copies of a work are being hawked, likely to be hawked or marketed. In the same way as the Minister of State or I can get an injunction overnight to stop a newspaper reaching the stands if it contains a serious allegation about a person, surely there can be some intervention if a copyright owner has reason to believe a cache of infringing videos or tapes are being transported in a big box in a truck to a market in Tullamore, Ballinasloe or wherever the open market might be and he or she knows those products will be offered for sale and are likely to be hawked. According to the wording of the section, the offender must be literally caught in the act - one must be literally looking over the shoulder of a fellow who is selling, say, a copy of Van Morrison's latest CD or whatever. That is a very onerous requirement to place on people.

A clause running through the Berne, TRIPs and WYPO conventions is that as simple a structure as possible must be put in place to protect copyright and to protect people who have the right to use copyrighted materials. The Minister has been badly advised if he has not been advised that the section should cover an owner and his or her agent. That will become relevant when we push the Minister of State to ensure that licensing agents should be registered. The inclusion of this amendment would strengthen the section.

The Minister of State should seriously consider the position regarding the possibility that copies of works are likely to be hawked, carried about or marketed. In that regard, I would be concerned about software. It is very easy to carry thousands of copies of a piece of software in a small package and a person could do enormous damage to the ownership of such software. If the Minister changed the wording of the section to read "hawked or likely to be hawked", he would also have to insert the words "is being" after the words "has been" in section 137. The tenses of verbs must be accurate in the legislation to ensure it will be effective. Under the law, one cannot get a District Court order to search a person's property if one has good evidence that he or she has a large number of infringing copies that are about to be hawked or sold at a market.

Does Deputy Stanton want to speak on this matter?

No, Deputy Owen's point was the one I wished to make.

I also want to ask about search warrants. I will raise that point later.

Deputy Stanton mentioned the question of the use of singulars and plurals in the legislation. We covered that point on a previous occasion. I am informed by the draftsman that singulars mean plurals and plurals mean singulars, so we are in order in that regard.

The owner of the copyright is mentioned in the section and Deputies Stanton and Owen asked if the words "or agents" should be included. The Attorney General's office does not agree with the term "agents" but another word, such as "representatives" might be acceptable.

Designated representatives.

I will check that. We considered the question of hawking and the issues Deputy Owen raised surrounding that question, but the advice I have, which is fairly sound, is that the words "likely to be hawked" would be too imprecise. How could it be proved that copies of a work were likely to be hawked? While that is a fairly legitimate point, that is the advice I have been given.

To give an example, if a garda stopped a person who was carrying a quantity of drugs, the garda can decide that person is likely to sell those drugs and the person can be taken in, questioned and brought to court on the basis of the garda not having any knowledge other than that the person was in possession of the drugs.

I know that. The section contains the words "... believing that they are being hawked, carried about or marketed". The points outlined by the Deputy would be covered by that reference in the section. The Deputy's example regarding drugs would be covered by the words "carried about". Under this section we are giving strong powers to rights holders and to the Garda and I am satisfied that what is included in the section is sound, but I have given a commitment to consider in particular the question of owners and representatives.

I do not want to nit-pick, but I presume "being hawked" means being sold. Perhaps the Minister will define the word "hawked". It is an archaic word. Does it mean marketed or carried about? I believe it means selling in some way. If I have infringing videos in my house and I am not marketing them, carrying them about or hawking them, can I tell a garda who comes to the door to go away, that I am not breaking the law by merely having them in my house?

Even if a person has 5,000 copies of a work.

The Deputy is talking about specific circumstances in which a seizure would take place. That language was used in the 1963 Act, but I think we all have a good idea what the word "hawked" means.

Yes, but it is not enough for us to have a good idea what it means.

Did the Deputy ever see people hawking on the way into a Gaelic football match? I presume hawking means selling goods in a casual way. I know what hawking means and I know the Deputy does too, coming from where she does.

It was decided to leave that word in the section because it has a different meaning from "marketing" and "selling". Could a barrister go into court and run rings around that word and say that a person was not hawking or marketing copies of a work but merely selling them during a tupperware type party in his or her house? Would a person be hawking copies of a work if he or she invited people into his or her home during and they bought a copy of the illegal copyright? Is that marketing in the privacy of one's home? It is not hawking. Hawking means selling outside race meetings, on the mobile markets. It means the set ups or fit ups, basically casual trading. I do not know if there is a definition of it at the start of the Bill but if not, it should be inserted so there is no doubt about what hawking means.

With regard to the Minister's point about "carried about", can he assure me that it reads "and where satisfied that there are reasonable grounds for believing that there are being carried about infringing copies of the work"? I can go to court, therefore, if I am the owner of some work and I know somebody is driving around with infringing copies of my work or my agent or designated representative knows it. That is very loose. It just refers to carrying them about. Is the Minister saying that it means the same thing as likely to be hawked?

We will be here until Christmas. This is about seizure without warrant. We are not talking about search warrants but a specific and limited situation. It refers to "authorise by order a member of the Garda Síochána to seize without warrant". It is a particular situation where the Garda would seize goods in certain circumstances. Barristers have their own job, but the meaning of hawking is commonly understood so I have no fears about what they might do with it.

How stands the amendment?

I am not happy about the situation——

Can we first deal with amendment No. 89? Is it being withdrawn?

Amendment, by leave, withdrawn.
Question proposed: "That section 127 stand part of the Bill."

Somebody might have 1,000 pirated copies of a video in their house and they are not hawking, carrying or marketing them although they might intend to do so at a future date. Can those copies be seized under this section? My reading of it is that unless it is more specific, it might not be possible to do that.

This is most important. This is one of the strongest protections against mass production of, for example, software. We know that it is easy to swamp the streets of our cities and towns with illegal, pirated copies of CDs, videos, tapes, Playstation games and so forth so the benefit does not accrue to the person who has put the intellectual ability into designing the product.

The Minister might be right to point out that the section provides for specific circumstances in which the garda can seize the copies without warrant. This type of section is needed to be protective of the copyright owners but it must be specific to ensure that, for example, if there is somebody in a hotel room with these copies there will not be unnecessary raids of hotel bedrooms. The Minister should not dismiss section 127 as if it were most unlikely to occur. Under the video recording legislation the Garda can go into video manufacturing premises and seize all the equipment and products. This appears to be a similar provision in this Bill. It is important that the provision is right. Taking arcane language from the 1963 legislation is not good enough unless the Minister can give the committee a good reason for doing so and can assure us the Attorney General is satisfied.

Can the Minister be helpful on this issue?

I have asked my officials about where in the Bill the situation referred to by Deputy Owen is dealt with. Section 126 refers to order for delivery up. If a rights holder discovers that his or her property is in a particular house, I am advised that section 126 deals with that situation. I am conscious that I am on the record so I might need to come back to the Deputy with the complete answer to her question. I do not wish to give an answer unless it is correct.

This section is about hawking and refers to seizure rather than search warrants. However, the Deputy has mentioned something that needs to be comprehensively checked and I will do that.

Question put and agreed to.

Amendment No. 1 to amendment No. 90, amendment No. 140 and amendment No. 1 to amendment No. 140 are related. Amendment No. 90, amendment No. 1 to amendment No. 90, amendment No. 140 and amendment No. 1 to amendment No. 140 can be discussed together. Is that agreed? Agreed.

I move amendment No. 90:

In page 75, between lines 23 and 24, to insert the following subsection:

"(12) Where there has been an exercise of the right to seize and detain, conferred bysubsection (1), the court may, on the application of a person aggrieved by it, award damages against a person who exercises that right as it considers just, on being satisfied that-

(a) no infringement of copyright has been established, and

(b) the grounds that the person has for such seizure were malicious.".

During the Seanad debate, Senators thought that the provisions in section 128, which give rights owners the right to seize infringing material, gave too much power to rights owners and they were concerned that such provisions could be abused. At the time, I pointed out that these were necessary provisions which were designed to address the problem of street hawkers who are not inclined to wait around while a rights holder goes to the District Court to obtain permission to seize infringing material. I suggested that a provision for an award of damages in innocent or malicious circumstances, similar to that contained in the sections dealing with applications to the District Court for the seizure of infringing materials, might be useful. Having considered this matter further, I am of the view that such a provision would be necessary in the interest of equity. It is proposed in this amendment.

I cannot accept the amendment proposed by Deputy Rabbitte as the wording is too imprecise. In any event, the idea behind my amendment is to allow for circumstances where malicious claims for seizure are made.

I move amendment No. 1 to amendment No. 90:

In the last line of paragraph (b), to delete “malicious” and substitute “insufficient to justify seizure”.

I am a little surprised by the Minister's comment. A situation where one only gets damages if malice is proven is a rather high test, impossible in many circumstances. I cannot see why a test of "insufficient to justify seizure" is not adequate. Other than that, I have no objection to the Minister's amendment. However, the test for such seizure being malicious is too extreme.

I am concerned about the first line of section 128 which again refers to the owner or the designated representative. Perhaps the Minister would look at it again and see if anything can be done about it on Report Stage.

I have made my case with regard to Deputy Rabbitte's wording. He believes that his wording is more appropriate than mine, but I consider it too imprecise. We are allowing for a situation where malicious claims for seizure are made. We are trying to improve the section as a result of the debate in the Seanad.

The only difference, although it is substantive, is that the latter paragraph of the Minister's amendment would read that the grounds the person has for such seizure were unsufficient to justify seizure. To require malice to be proven seems to place the hurdle high. I am not sure what he sees wrong with it. Why is it inadequate?

Legal certainty is what we require. I have no problem deferring this amendment to Report Stage if we can come to some agreement. We are both trying to achieve the same end.

I accept that.

Amendment to amendment, by leave, withdrawn.

On a point of information, paragraph (b) of amendment No. 90 states that “the grounds that the person has for such seizure were malicious”. Should that read “the grounds that the person had for such seizure were malicious“?

Paragraph (a) of amendment No. 90 states that “no infringement of copyright has been established, and”. Paragraph (b) of the amendment states that “the grounds that the person has for such seizure were malicious”. It may be “has” or “had”. I will look at that for Report Stage.

Amendment agreed to.
Section 128, as amended, agreed to.
Sections 129 to 131, inclusive, agreed to.
Question proposed: "That section 132 stand part of the Bill."

Section 132(3) states that "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." Perhaps the Minister will explain what is meant by that phrase which seems confusing.

"Sufficient disclaimer" is defined in section 105(4), which we have already discussed. It would be a matter for the courts.

Question put and agreed to.
Section 133 agreed to.
Amendment No. 91 not moved.
Question proposed: "That section 134 stand part of the Bill."

The Minister is aware of our concerns that a balance must be struck between the rights holder and the people on the other side. We are also concerned about how this section will work. I am interested to hear what the Minister will say about how it will be policed and whether he will take on board the notion of a copyright tribunal or a tribunal for all intellectual property.

Question put and agreed to.

I move amendment No. 92:

In page 79, after line 41, to insert the following subsection:

"(2) In this section 'loan' means a loan for reward and in particular does not include a loan to a family member or friend for private and domestic use, and 'lends' shall be construed accordingly.".

I ask the Minister to remind me why he thinks his definition of 'loan' is superior.

We discussed this issue under amendments Nos. 77 and 78.

Amendment, by leave, withdrawn.
Section 135 agreed to.

I move amendment No. 93:

In page 81, before section 136, to insert the following new section:

"136.-A person who, for monetary gain, makes a claim to enjoy a right under this Act which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years or to a fine not exceeding £10,000,000 or to both.".

This amendment seeks to insert a new section to provide for a situation where false claims of copyright are asserted. We have spent a great deal of time deciding how to deal with unfortunate teachers who might take two copies when they were only permitted to take one and providing against various forms of domestic piracy. However, we have not dealt with a situation where a false claim is asserted in respect of copyright. The legislation should deal with a person who asserts such a claim for financial gain, knowing it to be false.

This amendment seems to relate to an earlier issue about people making false suggestions. The Attorney General might argue that laws already exist to punish such offenders, such as the legislation which deals with contempt of court.

I am interested in this amendment and in what the Minister will say about it. This is similar to sections 122 and 134 which deal with presumptions. This amendment could act as a major deterrent if someone is thinking about making a false claim that they are the copyright owners, which can be difficult to disprove. It could also safeguard the people about whom we are concerned. It is worth considering this amendment or introducing a similar one. Only people making false claims would suffer.

A similar amendment was tabled by Senator Ryan in the Seanad. Following that, I directed my officials to consult the Office of the Attorney General about it. The advice of the office was strongly against introducing an offence of the type contemplated by this amendment. The problem is that the existence of such an offence could create confusion as to whether it or the primary copyright offences already provided for under section 135 would have priority in prosecution. The Office of the Attorney General also pointed out that the concept of a false claim of copyright is effectively embodied in the existing section 135 offences.

As regards the level of maximum penalty suggested, particularly the suggestion of a maximum fine of £10 million, the Office of the Attorney General would doubt the legal and constitutional acceptability of such a high fine. The overall approach of the Bill's similar remedies and criminal penalties emphasise the importance of remedies as the primary protection for copyright in most cases, with the criminal sanctions essentially in a supporting role. The very strong regime of civil remedies provided for in the Bill sets no limit on the power of the courts to award compensatory or punitive damages where they consider it just. This should ensure that the response of the new legislation to serious copyright infringement is entirely proportionate.

Is Deputy Rabbitte satisfied with the Minister's response?

If there is some legal infirmity in it, I do not have a great deal of alternative, but I am not sure that I understand what that legal infirmity is. Surely creating confusion is the raw material for the employment of lawyers. I would not be too concerned about that. The task of the court is to bring clarity where there is confusion, and it is not a major argument. In legislation where we have agreed to put a virtual policeman beside every photocopier and video machine, it seems extraordinary that somebody can assert ownership of copyright that over a period of years may be worth countless millions. Yet, it seems extraordinary that we do not provide the means to clamp down hard on that. Perhaps the Minister is right in saying that it is included in section 135, but it escapes me. I do not readily see that section 135 is the same thing, but maybe it is.

I would be interested to know where this is dealt with in section 135. I cannot see it either. Maybe the Minister can point it out to us.

Will the Minister throw some light on this in relation to section 135?

That is the case. If one looks at all the various examples in section 135, one will find it is dealt with there. I do not want to read through it all, but section 135(1) states:

A person who, without the consent of the copyright owner-

(a) makes for sale, rental or loan,

(b) sells, rents or lends, or offers or exposes for sale, rental or loan,

(c) imports into the State, otherwise than for his or her private and domestic use,

(d) in the course of a business, trade or profession, has in his or her possession, custody or control, or makes available to the public, or

(e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright,

a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence.

We want to deal with this under primary offences. I have the Attorney General's advice that we do not want to cause confusion between this amendment and section 135 which contains the primary offences.

Is the Minister satisfied that section 135 deals with false claims of copyright?

Is Deputy Rabbitte happy enough?

I presume the Minister is asserting that for very good reasons, but I cannot readily see that they amount to the same thing. My amendment concerns a person making a claim to enjoy a right under the legislation that he would not otherwise have, or that he cannot always substantiate. The offences section the Minister is referring to is a list of transgressions that the infringer is committing, which is different.

In the spirit of the constructive approach the Deputy has adopted, I can go back to the Attorney General's office, but I suggest that the £10 million is rather on the high side, although I do not know whether he would agree with me on that. Amendment No. 93 refers to "a fine not exceeding £10,000,000", and that is certainly high.

I would be quite happy to barter with the Minister on that point.

To Deputy Rabbitte, £10 million might not be very large.

The paternity of that is taken from section 141 of the Planning and Development Bill. I cannot see how unfortunate developers could be expected to bear that kind of penalty if those claiming false copyright could not bear it.

Can we tidy this up? It is either a false claim or an offence, is that not what the issue boils down to?

May I ask one question on that?

I want to clarify that matter. Is the Minister satisfied that the false claim aspect is covered under the offences in section 135?

To do that we would have to do one of the things we have suggested. We are approaching it from a different angle, obviously. We are satisfied that it is, but I have told the committee that I will ask the Attorney General to look at it again and in doing that, as I have indicated to Deputy Rabbitte, I will have to look at the figure of £10 million to which Deputy Rabbitte's amendment refers.

Deputy Lenihan is getting some enjoyment out of Deputy Rabbitte's figure of £10 million. I think it is giving him an indication of Deputy Rabbitte's understanding of big money.

He is negotiating like Albert Reynolds did on the Structural Funds. He is starting high.

We live in a zero tolerance environment.

I am curious about this point. Is it the Attorney General's advice that the existing criminal law covers this situation in much the same way that Rossie Walsh's false claims were covered by the full sanctions of the criminal law? In other words, it is an offence anyway to make a false claim, to deceive a court or construct an action that is deliberately designed to defraud. In effect, therefore, the criminal law already covers this matter.

If one wants to benefit economically by doing any of these things, one commits an offence. We are saying that the offences are covered in section 135. The concept of a false claim of copyright is effectively embodied in the existing section 135. However, I can do no more than go back to the Attorney General.

If somebody claims copyright under that section there is a presumption that they own it, yet it is false. My interpretation of it is that this is where it comes in rather than under an offence. It would actually forestall somebody from making a false claim of presumption. That matter should be examined. How can one forestall somebody from making a false claim of presumption? If there was something in the Bill to help prevent or forestall that, it would make many people happy on all sides.

There certainly are two issues here. The Minister has given a commitment that he will come back on the issue of false claims. Is Deputy Rabbitte withdrawing the amendment?

If the Minister is saying that the same idea is encompassed by section 135, I have no difficulty in doing that. Quite separately from the quantum of the proposed penalty, which has nothing to do with it, I would like him to take advice on whether this circumstance is provided for, as Deputy Stanton says. I presume subsections (6), (7) and so on deal with the penalties that derive under the offences in section 135. As I understand it, the Minister is saying that his advice from the parliamentary draftsman's office is that section 35 encompasses the same idea. I would like to be satisfied with precision that that is what is being said. That is not quite the same thing as saying "I am creating a new offence here that is creating confusion", which I thought was his first point. If his second point is that the same idea is taken on board in section 135, that is a different point and one I can live with.

The Deputy has asked me to do various things and I will do so. We are told by the Attorney General's office that there is a legal infirmity, which is the very phrase Deputy Rabbitte used, so that is our position. However, having said that, we take a particular view in section 35 which goes through all the various ways in which one can offend, from taping to encryption signals to particular public performances and figures are mentioned. I accept we need to look at this. We have agreed that the figure is too high and on that basis, I have agreed to go back to the Attorney General's office.

Amendment, by leave, withdrawn.
Question proposed: "That section 136 stand part of the Bill."

I raise a query in the context of what the Minister said - it relates to and is encompassed by section 135. Are the penalties provided there taken from any schedule of penalties about which we know? There must be a corresponding obligation on the corporate fraudster having spent a great deal of time talking about librarians making two copies and so on. The penalties seem modest enough in the context of the scale of the fraud which might be perpetrated. Is that scale taken from any international one? How does it compare to the 1963 Act and so on?

I recall having this debate in regard to some of our legislation on safety. The view is that these penalties in respect of criminal activities under the new Bill should be as high as possible while allowing rights holders access to all the courts. The Department view is that penalties on summary convictions and on convictions on indictment, as provided for under subsections (6) and (7), are appropriate and will act as a deterrent to would-be copy infringers.

Section 3 of the Intellectual Property (Miscellaneous Provisions) Act, 1998, outlines the penalties on summary proceedings in respect of dealings which infringe copyright. These penalties and proceedings are continued in the new Bill and have been updated to take account of articles which are specifically designed or adapted for making infringing copies and protection defeating devices. Statutory damages which would be payable to the copyright owner are considered by the Department not to be appropriate in cases of criminal proceedings given the level of penalties being proposed by the Department and the flexibility of approach provided for in civil proceedings. The reason for that is that the rights holder will have access to all the courts.

Question put and agreed to.
Question proposed: "That section 137 stand part of the Bill."

This is a wide-ranging section giving many powers. Because of the type and scale of crime involved and the importance of this to the economy, it is important this is included. Section 137(1)(a) states: “that an office under section 135 has been, or is about to be, committed”. Will the Minister explain the phrase “or is about to be committed”?

This continues the provision in subsection (1) and provides for search and seizure where infringement of a criminal nature, that is, an offence under section 135, is being, or is likely to be, committed. It extends this to include cases where there is evidence that such an infringement is being or is likely to be committed.

This subsection also extends the scope of the provision and allows for the gardaí to seize any articles specifically designed or adapted for making infringing copies and protection defeating devices to seize anything from there which he or she believes on reasonable grounds may be required to be used in evidence in any proceedings brought in respect of an offence under the Act and requires any person found there to give his or her name and address.

In addition to the seizure of physical objects, this subsection provides the option to make an inventory or prepare other evidence of infringement or potential infringement of copyright and this arises from the advancement of technology to the extent where some infringements are almost intangible - for example, running a computer programme without the appropriate licence.

Question put and agreed to.
Question proposed: "That section 138 stand part of the Bill."

On section 138(2)(a), what is meant by “is under a disability”?

It provides that where the copyright owner is under a disability or is prevented by fraud or concealment from discovering the facts entitling him or her to apply for an order for delivery of civil proceedings under section 126 during the whole or any part of the six years from the date on which the infringing copy articles specifically designed or adapted for making infringing copies or protection defeating device is made, the copyright owner may make an application under section 126 at any time within six years from the date on which the applicant ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts. The definition of disability has the same meaning as in section 48 of the Statute of Limitations Act, 1957.

Question put and agreed to.
Section 139 agreed to.

I move amendment No. 94:

In page 84, before section 140, but in Chapter 14, to insert the following new section:

140.-Section 23 of the Trade Marks Act, 1996, is hereby amended by the substitution of the following subsection for subsection (6) of that section:

'(6) References in this section to a person having an interest in goods, material or articles include references to any person in whose favour an order could have been made undersections 139 and 248 of the Copyright and Related Rights Act, 2000.’.”.

This is a technical amendment which is necessary to amend the Trade Marks Act, 1996. That Act contains reference to section 27 of the Copyright Act, 1963, and with the exception of section 59 will be repealed by the Copyright and Related Rights Act.

Amendment agreed to.

I move amendment No. 95:

In page 84, subsection (4), line 31, after "force" to insert "and has been certified as bona fide and in accordance with this Act by the Revenue Commissioners”.

This amendment would insert a clause in subsection (4) where a notice given under subsection (1) is in force concerning the importation of goods and so on. It seems some State supervision to prohibit importation is necessary, otherwise private individuals can create an offence. I advocate this for the purposes of clarity.

Revenue said no. A similar amendment was tabled in the Seanad and I asked my Department to consult the Office of the Revenue Commissioners which pointed out that it would not be possible for them to discharge the responsibility of verification which this amendment would place on them. In any case, any person alleging himself or herself to be a copyright owner who employed the provision of section 140 in bad faith would face serious legal action on the part of the true rights holder and importers of the protected materials concerned. It is a question of Revenue having a strong view.

Revenue is saying it does not have the capacity to police it.

How does it say the infringer would necessarily come to grief? There is no supervision.

It would be responsible here. It is saying it cannot discharge that responsibility. I do not know if I can do anymore with this. I am glad to help the Deputy in some way because I can see where he is coming from, but we can do no more than pursue it with Revenue again.

Will the Minister of State read the latter half of his note?

Any person alleging himself or herself to be a copyright owner who employs the provisions of section 140 in bad faith will face serious legal action on the part of the true rights holder and importers of the protected materials concerned.

How will the true rights holder know in all cases?

By being adversely affected by Revenue action.

Amendment, by leave, withdrawn.
Section 140 agreed to.
Section 141 agreed to.

Amendments Nos. 141 and 145 are cognate with amendment No. 96, therefore, amendments Nos. 96, 141 and 145 may be taken together by agreement.

I move amendment No. 96:

In page 85, subsection (1), line 31, to delete "copyright".

This is a purely technical amendment to delete "copyright" where it first occurs.

What does it mean?

It deletes "copyright" in page 85, line 31.

It will now read "licences" means, etc. Is that correct?

Yes. Page 85, lines 31 and 32, will read:

"licences" means licences to undertake or authorise the undertaking of any of the acts restricted by copyright;".

Is this just a tidying up exercise or does it have some meaning?

It is a technical amendment, and the same applies to amendments Nos. 141 and 145.

The word "copyright" is deleted from the words "copyright licences". Is that correct?

Amendment agreed to.

Amendment No. 98 is an alternative to amendment No. 97 and amendments Nos. 99 and 132a are related, therefore, amendments Nos. 97, 98, 99 and 132a may be taken together by agreement.

I move amendment No. 97:

In page 85, subsection (1), line 33, after "organisation" to insert "which has been registered as such under the provisions of this Act and".

The licensing body should be registered and should not just set itself up within the meaning of this paragraph.

We have given substantial power to the societies, licensing bodies and so on. It is time now to look at methods of controlling and registering them and ensuring that only the bona fide licensing bodies and societies are in operation and that they operate within certain guidelines. The requirement to register and the provision of conditions by which they must do so would bring a measure of control to the situation.

This is another important part of the Bill and there are a number of sections here we need to discuss. I thank Deputies Rabbitte and Stanton for making these proposals, especially the scheme proposed in amendment No. 99. The amendments would impose a regime of compulsory registration on copyright licensing bodies or collecting societies. However, I do not propose to accept them.

Collecting societies are an essential part of the copyright scene. Some class of copyright rights holders, including music composers and arrangers, authors of literary works and smaller record companies, would not be capable of collecting copyright royalties on an individual basis. It would be unreasonable, for example, to expect a music composer to collect the royalties to which he or she is entitled. It might involve the composer contacting a very large number of individual outlets where music is played and this would be impracticable. Copyright law gets around this problem by allowing the rights holders in question to band together in collecting societies which collect royalties for their members on a collective basis and distribute the proceeds to the members in proportion to the use made of their protective materials.

To an extent, collecting societies are necessary evils. They are effectively monopolies and I share the concerns of the committee that their monopoly position should not be abused in such a way as to undermine the rights of the users of copyright materials or the community at large. With this in mind, the licensing schemes of the collecting societies are subject to the supervision of the competition authority and, more generally, I, as Minister of State, am anxious to encourage good and orderly relations between the collecting societies and users of protected materials.

Nevertheless, difficulties have arisen from the manner of operation of some collecting societies, which in some instances have been presented as oppressive and it cannot be denied that this suggestion may have had justification in some cases. It will, therefore, hardly surprise members that I considered the possibility of introducing compulsory registration for collecting societies in this Bill.

However, there are a number of difficulties which persuade me that this would not be a good idea. First, there is the problem that compulsory registration would represent a formality precedent to the exercise of copyright law. Members will recall from discussion on a previous amendment that formalities of this sort are not permitted by Article 2.5 of the Berne Convention on the Protection of Literary and Artistic Works.

Another problem is that compulsory registration would appear to be of little use unless it involved the registering authority in a regime of supervision and verification, which would be difficult for that authority to discharge. This is recognised in amendment No. 99, where the proposed new section 143 would oblige the registering authority to satisfy itself as to a number of matters before registering a collecting society, most of which would be difficult to establish in the abstract and some of which are subjective. The imposition of such a burden could seriously impede the general work of any authority, whether it be the controller of patent designs or trademark or some other authority which might be entrusted with the duty of keeping the register.

In these circumstances it is my conclusion that compulsory registration of collecting societies would be neither legally possible nor advisable in administrative terms. Following from this conclusion I decided that it would be appropriate to institute schemes of voluntary registration for collecting societies operating in the copyright performance rights and database areas, which are provided for in Part II, Chapter 7; Part II, Chapter 8 and Part V, Chapter 12 respectively. These schemes would provide collecting societies with the opportunity to open up their operations to much greater transparency through the medium of public registers kept by the controller of patents design and trademarks and should be of considerable assistance in bridging the gap in information which currently exists between collecting societies, commercial users of copyright material and the public.

The reaction of collecting societies to these proposals to date suggest that they generally appreciate the advantage of voluntary registration and I expect that most will register. I am advised that the European Commission has commissioned a study on the supervision of collecting societies and this may produce ideas on such supervision which may be useful in future legislation. Members may also be assured that should it become evident that a stronger line on collecting societies regulation is required I will advance appropriate proposals for legislation. At present, however, I do not see that a system of regulation based on compulsory registration would be appropriate and, accordingly, I would not be happy to accept these amendments.

I do not think we will have the discussion the Minister of State invites this evening. I, and I am sure Deputy Stanton, would like time to consider the statement he has put on the record.

I thought we might finish section 143, but I gather it is best we adjourn at around 7.30 p.m., as agreed.

As it is that time, I agree with Deputy Rabbitte.

Thank you, Chairman, and the members. We made a great deal of progress. I would be happy to end this meeting, as we did the meeting last week, and return to the matter at the next meeting. I can give the members a copy of my statement, if it is any help.

I propose that we adjourn. Is that agreed? Agreed. I thank the Minister and his officials for their attendance. The Select Committee will meet again tomorrow, Wednesday, 23 February 2000, in Room G5 from 5.30 p.m. to about 7.30 p.m. to resume consideration of the Copyright and Related Rights Bill, 1999.

The Select Committee adjourned at 7.31 p.m. until 5.30 p.m. on Wednesday, 23 February 2000.