I welcome the Minister of State and his officials, Mr. Jack Thompson and Mr. John Rutledge. It is proposed to work until 7.30 p.m. Is that agreed? Agreed. We adjourned the last meeting on section 142, amendment 97 and the Minister of State had undertaken to look into some issues.
Copyright and Related Rights Bill, 1999 [Seanad]: Committee Stage (Resumed).
I understand that the presentation I made yesterday was circulated to all committee members. I am taking the same position today as I did yesterday. I am not aware of a system in any EU state where these agencies are forced to register. The main point yesterday was that compulsory registration might present a formality as well as complicationsvis-à-vis Article 5 of the Berne Convention. I also mentioned amendment No. 99, which proposes a new section which would require a registering authority to satisfy itself as to a number of matters. That would be putting a number of new responsibilities on the controller and there is also a study by the European Commission. Also, I understand all the collecting societies will register on a voluntary basis. I advocated that position and by circulating my brief submission I hope to help the discussion.
I am grateful to the Minister of State for circulating the submission he made last time. He states that he notes that there have been difficulties arising from the manner of operation of some collecting societies which, in some cases, have been presented as oppressive and that it cannot be denied that in some cases this suggestion may have had justification. The Minister of State is admitting there are serious problems. One cannot get stronger wording than that here - "oppressive". Obviously something must be done. I also note that most of the collecting societies are anxious to be registered, though maybe not all of them.
Regarding the formality aspect, the Minister of State quotes Article 5 of the Berne Convention and Deputy Owen and I have it here. It seems to apply to authors and owners of primary copyright. Article 1 states that authors shall enjoy works for which they are protected under this convention and Article 2 states - as the Minister of State rightly says - that these rights shall not be subject to any formality. However, collecting societies are not authors. We are seeking compulsory registration of collecting societies, not the owners of primary copyright. That is a paradox I am missing here and perhaps the Minister of State can clear it up. The fact that there are serious problems, in the Minister of State's words, adds weight to the argument that these societies should be compelled to register. What protection does the user of copyrighted material have if a cowboy collecting agency comes on the scene? The Minister of State can do nothing about it and neither can the genuine collecting agencies, while the person trying to use the copyrighted material is at serious risk, as the Minister of State has outlined. This is quite weak and the only argument open to the Minister of State is that resources will not be left to the controller to do the job. This has been the major problem all along that we have seen in this area. Perhaps the Minister of State could clear up some of these points.
I did not have any discussion with Deputy Stanton since the last meeting but I support his analysis. I thank the Minister of State for his note. I suggested he circulate it last time because of the way that paragraph jarred.
In terms of advancing reasons the amendment for the registration of licensing bodies is not necessary, the Minister of State said:
Nevertheless, there have been difficulties arising from the manner of operation of some collection societies, which in some cases have been presented as oppressive and it cannot be denied that this suggestion may in some cases have had justification.
The reason we put the amendment down is that we know the suggestion has some justification. We know of and have discussed cases where "oppressive" is the appropriate term. Listening to the Minister of State at the last meeting I am left with the view that the Department does not want to take on this work on or, more pertinently, the Department does not believe the controller can take on this work. If that is the reason, it is not a good one.
Reference was made to the formality precedent. The registration we propose would not be a formality precedent preventing the owner of copyright but rather would prevent the collecting agencies. Therefore, I cannot see that an argument based on preventing the owner of copyright rebuts the amendment.
The Minister said "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 quite difficult for that authority to discharge". That is an argument based on administrative convenience which leads me to the view that there is no confidence that with current staffing, etc., the controller could take this on in addition to his other duties and functions. This is not a good basis for making law.
The Minister concluded by saying "the reaction of collecting agencies to these proposals to date suggests they generally appreciate the advantages of voluntary registration and I expect that most of them will, in fact, register". Again the implication is that some will not register. We have no mechanism to police rogue collecting agencies if they exist or are set up. The Minister's final comments depict stasis in the Civil Service, which I qualify by emphasising my very high regard for the Minister's immediate colleagues. The argument that Europe, like John Wayne, might come riding over the hill to show us all a way out of this morass is not a very convincing.
I do not know if we require an amendment as detailed and prescriptive as we have tabled, but the fact is that we need some system. I do not think the arguments advanced against this are compelling.
This is a crucial section, given the acceptance of amendment No. 134. The Minister was not agreeable to changing other sections, and I am very disappointed that, even if he did not agree with compulsory registration of collecting agencies when the Bill was being drafted, the debate and the submissions he has received have not persuaded him to go way ahead of other EU countries and decide to put in place compulsory registration. We are moving in a number of other areas. Previously Ministers would have said they would prefer people to do certain things out of the goodness of their hearts or that they should be allowed show they are well able to regulate themselves but, in the context of people collecting money on behalf of others. we are moving to a situation where openness and transparency are essential. We must rule against renegades and cowboys - we can call them by whatever name we want - who are unscrupulous in their behaviour and who could not care less whether there was a controller who might some day ask them whether they operate their collecting agency correctly. I am really disappointed that the Minister, who pioneered legislation when in Opposition about Sunday trading, which he subsequently forgot about when entering Government——
By voluntary agreement.
The Minister told us that "to an extent collecting societies are necessary evils". That is a very strong statement. He went on to say they are effectively monopolies and can be abused, something which should not happen. In this context the Minister should say he agrees with the Opposition amendments and that a registration agency is necessary. The only reason given by the Minister for not doing so is that Article 2 of the Berne Convention states that the rights shall not be subject to formalities of this sort. The Minister already agreed in a discussion on an earlier section to look at the issue of "owners" and "designated representatives". We know that owners of copyright are not alwaysin situ and that they must ask others to do their work and collect money for them. This is as it should be as individual artists or singers cannot necessarily collect money. Therefore, I accept that collecting agencies will exist in the long-term.
The legitimate societies as asking to be compulsorily registered, and I do not know why the Minister is objecting. PPI says it should be forced to register as a licensing body and is appealing to the Minister in this regard. It does not want to be seen in any way as a rogue licensing agency collecting money. Rather it wants to be open and transparent in its work so that if rows occur a system exists. Without this, some agencies will voluntarily register - I am sure PPI will - and if a dispute arises they might find themselves opposing a fly-by-night or non-registered group. I do not know why some decide to register while others do not when registration is voluntary. In addition, will all know that the voluntary system, with a controller of patents, has not worked. The Minister must take the bull by the horns——
Should I surrender at this stage? I am up against the wall.
The controller system is not working - I am not being pejorative about an individual in making this comment. We know the controller has been brought into an ongoing row and that an arbitrator was agreed upon. If we had an effective controller system we would not have this long ongoing row and we would be dealing with the legislation in a totally different atmosphere.
My colleague, Deputy Stanton, has pointed out that the Berne Convention only governs primary rights holders. It does not govern neighbouring rights holders, and there is nothing preventing the Minister from obliging licensing organisations, established by record producers, broadcasters, cable operators or book publishers, which are one remove from authorship, to register. The Minister of State is hiding behind the Berne Convention which reads, "shall not be subject to any formality", but an affidavit, which is a formality, is included in section 122. He is cherry picking from the Berne Convention to suit his argument. The convention reads, "the enjoyment and exercise of these rights [meaning the rights of copyright] shall not be subject to any formality". This is the enjoyment and exercise of the rights; it does not say that if you have asked an agency to collect your money. That should not be subject to some type of formality or registration. The Opposition agreed that section 134 should be included in the legislation but we will not agree to include this section. The Minister of State must consider what we are saying about compulsory registration.
I agree with the Minister of State's philosophy that it is better to have the threat of being able to lever compliance through a voluntary route. There is a danger that we might achieve the opposite result here because some of these collection agencies are no better than highway robbers. A compulsory registration system might give these people a legitimacy or dignity they do not deserve. The correct approach is to encourage the industry to adopt best practice through a voluntary code. That will shake out the highway robbers in this nasty business, which is akin to debt collecting. I do not think there is any point dignifying debt collectors. We would like to think that they operate best practice and do not break people's arms when collecting money. However, the opposite is the sad reality.
I look forward with interest to the Minister of State's reply to the many points raised.
The last time I heard Deputy Owen in full flight was in South Africa when we were both fighting against the apartheid regime and meeting all sorts of people. The Deputy put a good case, as did Deputies Rabbitte and Stanton. I listen with interest to what Deputies say and I appreciate the value of committee meetings.
There is a voluntary system in other EU states. This does not necessarily mean that this is the best way to go about this but I believe voluntary registration will be transparent and helpful to both collecting societies and users of protected materials. This is the direction in which we would like to go. Amendments Nos. 97 and 98 will give us some leeway to go back to the Attorney General and question the formality aspect. I am concerned about amendment 99, which is very prescriptive, and I do not want to go down that route. However, in light of the discussion, I will refer the issue to the Attorney General and report on the matter on Report Stage because Deputies have made a good case in relation to the Berne Convention and the formality issue.
I share the Deputies' views on collecting agencies and their tactics in some cases. These agencies are monopolies and if they abuse their position they could be investigated by the Competititon Authority. However, that is another matter. We would all go down the route of compulsory registration if this was a way of solving the problem. There are other ways of dealing with this issue and people's concerns are on the record. On the basis of the discussion and the cases made by the Deputies, I am prepared to go back to the Attorney General and question the issue of formality. The official position is in the document but I am stating my position as Minister with responsibility in this area.
The Minister of State seems to be saying that he is doing this on the basis of amendments Nos. 97 and 98 which are almost the same. If he accepts these amendments, he is accepting compulsory registration because the section will then read, "A licensing body means a society or other organisation which has been registered as such under the provisions of this Act". That means that only those schemes which are registered under the Act can operate.
I want to make it clear that I will go back to the Attorney General to question the issue of the formality referred to in the Berne Convention on the basis of the amendments, but I will not accept them today. I will come back to them on Report Stage. Deputy Rabbitte accepted that there may be a simple way of doing this. I must get legal advice to make sure I get this right. I am simply saying that the case has been put to me and I am assuring the Deputies that I will go back to the Attorney General's office on the issue of the formality which Deputy Owen quoted from the Berne Convention.
Is the Minister of State saying he has an open mind on compulsory registration?
Yes, I have an open mind on that issue.
I will withdraw my amendment in light of what the Minister of State has said. His disposition in life is to be agreeable. It is a pretty serious matter on Committee Stage to give the impression that visits back to the Attorney General will produce results. Sometimes one is better off dealing with a Minister who does not have the amiable manner of this Minister and one knows they will not get anywhere anyway. With that caveat, I withdraw the amendment.
I have no doubt the Minister of State will take on board the wisdom of what is being suggested in the amendment.
That is on the record.
I move amendment No. 98:
In page 85, subsection (1), line 33, after "has" to insert "been registered as such under the provisions of this Act and has".
The Bill has been passed by the Seanad and, therefore, it is very late to be consulting with the Attorney General. The last day the Minister of State said he would look at this issue again and come back to us. I am amazed that there are question marks concerning Article 5.2 of the Berne Convention. The Minister of State seems to be accepting that secondary rights holders are not covered by the Article, even though he said in his memo that they were. We are concerned that legislation which passes through this House should be the best possible. We have been lobbied that there are difficulties in relation to this issue. If we get this issue right so that there is some way of controlling and monitoring these agencies, many of the fears expressed by the agency and those using copyright material will be allayed.
I note that the media have taken very little interest in this issue to date, even though it is very important. A letter appeared in a newspaper today pointing this out. I am aware the Minister of State has an open mind on the issue but is he disposed to going down the road we are indicating and making every effort to come back to us on Report Stage? Will he give a commitment that he will make an effort to go down the road of compulsory registration unless the Attorney General's advice is to the contrary?
I was trying to accommodate Deputy Stanton but this amendment was discussed with amendment No. 97. I should not have allowed debate on it.
The Minister has promised to come back on Report Stage on 40 sections of the Bill. On Report Stage, Bills are taken in the Dáil and Deputies are allowed two short interventions. Much of this Bill will be discussed on Report Stage and the issues will not be teased out like this in the Chamber. The Bill will be guillotined because of the procedures in place for Report Stage. I do not want to withdraw the amendments only to have the Minister come back and tell us the formality means what is in the Bill. The Minister has flagged that he is willing to advance appropriate proposals for legislation if it becomes evident that a stronger line on collecting agency regulation is required. Someone has told the Minister that, like it or not, he will have to register these societies. If that is the case let us do so. If the amendment needs to be tightened up, that is fine. That is not what the Minister is saying. If we withdraw the amendment, the Minister must get a further definition of formalities on the basis that he would like to find a way to move to the position outlined in amendment No. 99. Otherwise we will call a vote, the amendment will be declared lost and we will do it again on Report Stage.
I have two options, to stand by the voluntary proposal or to say I am prepared to consider the issue again. I have taken the second option. I cannot do much more. The Minister has to keep his word. I will pursue this. I accept what was said about the logistics of Report Stage but I genuinely feel this has been a useful discussion. I am not standing by my original position but I will pursue this with the Attorney General.
I move amendment No. 99:
In page 86, before section 143, to insert the following new section:
143-(1) Any society or other organisation which has as its main object, or one of its main objects, the negotiating or granting, either as owner or prospective owner of copyright, or as exclusive licensee, or as agent for him or her, of copyright licences, and whose objects include the granting of licences relating to works of more than one copyright owner shall apply to the Controller for registration as a 'licensing body' under this Act.
(2) Any application for registration of such a society or other organisation as a 'licensing body' shall be made not later than six months from the coming into force of this provision or within three months from the establishment of such a society or organisation, whichever is the later.
(3) All applications for registration of a society or other organisation as a 'licensing body' under this Act shall be accompanied by a draft licensing scheme and shall be in a form prescribed by law.
(4) Before registering any society or other organisation as a 'licensing body' under this Act the Controller shall-
(a) satisfy himself or herself that copyright prima facie subsists in the works of which the society or other organisation claims to be the owner or prospective owner or the exclusive licensee or agent of such owner;
(b) satisfy himself or herself that the society or other organisation is either the owner or prospective owner of such copyright or is the exclusive licensee or agent of the owner of the copyright;
(c) satisfy himself or herself that the terms of the licensing scheme proposed by the society or other organisation do not unreasonably restrain trade or adversely affect the transfer of technology;
(d) satisfy himself or herself that the society or other organisation does not, either by the terms of its licence scheme or otherwise, impose unfair terms or otherwise abuse the rights attaching to the works in respect of which it claims to be the owner, prospective owner, licensee or agent;
(e) satisfy itself that the society or other organisation is otherwise a fit and proper society or organisation for the purposes of registration as a licensing body under this Act.
(5) The Controller shall establish and maintain a register of copyright licensing bodies in such form and manner and containing such particulars as the Minister may prescribe to the known as the 'Register of Copyright Licensing Bodies' and referred to in this Part as the 'Register'.
(6) The Controller shall keep the Register in such form so that the Register is capable of being used to make a copy of any entry in the Register.
(7) The Register shall be kept at such place as may be prescribed by the Minister and, subject to the payment of such fee as may be prescribed by the Minister with the consent of the Minister for Finance-
(a) the Register shall be made available for inspection by a person at such times and in such manner as may be prescribed by the Minister, and
(b) where a request is made to the Controller for a certified or uncertified copy of, or extract from, an entry in the Register, the Controller shall issue a copy of the entry or extract to the applicant.
(8) A certificate granted undersection 168(7) shall include the particulars specified in subsection (6) of that section and the certificate shall be evidence of the right of the licensing body, until the contrary is proved, to act on behalf of the classes of rightsowners for whom it claims representation rights or on behalf of the rightsowners who have assigned rights to it, or exclusively licensed it, as specified in that certificate.
(9) A licensing body registered under this Part which proposed to impose a charge, otherwise than in accordance with the scales of charges included in an application for registration or for renewal of a registration, shall provide the Controller in writing with details of the proposed charge not less than one month before the charge comes into effect. The registration of a licensing body which fails to comply withsubsection (1) is deemed to be cancelled from the date on which the proposed charge comes into effect.
(10) A certificate of registration issues undersection 168(7) shall be valid for 12 months from the date of registration or such lesser period as may be specified by the Controller in the certificate. Subject to section 168(4), a licensing body register under this Part may apply for renewal of its registration for further periods each of which shall not exceed 12 months. An application for renewal of a registration shall be made not less than month before the expiration of the period of validity of the certificate of registration. A term of renewal of a registration shall take effect from the expiration of the previous registration.”.
The Minister did not respond to the point that his reluctance on the question of registration may derive from a conviction that the proposition that the controller can do the job conferred on him by these amendments is not feasible under present staffing arrangements. That is why the Minister has refused these amendments, it has nothing to do with the Berne Convention. That point should be addressed, we deserve that.
This amendment is tied to the amendments which have been withdrawn. The aim behind compulsory registration is to ensure that people who set themselves up as a collecting agency are legitimate and have proof that the copyright is owned by the collecting agency or those they represents. Will the Minister make sure in his discussion with the Attorney General that, if he is positive towards the concept of formality and registration of agencies, he will ask how much control there can be of compulsory registration? The Berne Convention refers only to the primary owner, it does not refer to the broadcasting agencies, record companies and so on. If there is to be compulsory registration, a person who wants to apply to be a collecting agent can say he or she owns the copyright or is acting on behalf of the owners of the copyright of material. Something should have to be lodged with the Controller to prove he or she has the rights to a work. Otherwise people could register and gain legitimacy by that registration although they are acting in bad faith. I hope the Minister of State will introduce an amendment to allow for compulsory registration under a set of standards.
I have made my position clear. We will bring all the issues raised to the attention of the Attorney General in the context of our discussions. I said this would be a burden on the controller but I have responded positively to the discussions.
The current system does not operate properly. That is not the controller's fault, it is the system's fault. It would be useful if the Minister indicated his thinking about the future of the controller's office and the resources it might need. How does the Minister feel about the supervision of intellectual property? There is a patents Bill in the pipeline and this needs to be examined.
I accept that amendment No. 100 is out order because it places a charge on the Revenue but we are trying to replace something for which there is a charge in the Bill. The controller's office costs money and we are trying to replace that with a tribunal in the amendment. The net would be zero if it were accepted as a replacement for the system which is already in place and for which money has already been provided. I do not understand the decision to rule this amendment out of order because it will incur a charge on the Exchequer.
Section 144 places responsibilities on an office with which it is not competent to deal. The office has neither the resources nor the cutting edge necessary to deal with the issues which will arise. For many years, thousands of companies remained unregistered because resources were not given to the Companies Registration Office. Deputy Rabbitte changed this when Minister of State. Irish registered non-resident companies, Irish companies and many classes of companies remained unregistered, some carrying on illegal businesses. From my experience as Minister for Justice, I know that Ireland has come into the loop of investigation into the lack of registration of companies. Resources have been given to the Companies Registration Office and the office is now computerised. It would be unfair to tell the people who will operate this legislation, whether copyright holders or users of copyright materials, that the controller's office will remain exactly as it is and that this complicated legislation must be operated in a system which has not worked for several years. This is why the Minister must accept the establishment of a tribunal, as exists in the United Kingdom. That would be the fairest way to come to decisions on the matters which are to be referred to the controller.
I wish to hear the Minister's speaking notes on the additional duties for the controller's office. The office has a very small staff and the Minister knows that anyone who has had dealings with it has found the experience completely frustrating. The Minister must give an assurance that resources will be provided to expand the controller's office along the lines of the reorganisation and modernisation of the Companies Registration Office by Deputy Rabbitte when Minister of State. If the Minister does not give us that assurance it will not be possible to operate this legislation.
It is important that a limit be placed on the time taken by the controller to consider a query. Consideration of a copyright matter should not drag on for six months or a year. There should be a time limit in place for arbitration.
Although this amendment is out of order I am happy to discuss the issue raised. It could be argued that the issue would be more relevant to our discussion of Part VI and it might be appropriate to raise it again at that stage.
The Patents Office has been decentralised to Kilkenny. Extra staff have been appointed and now number approximately 90.
No, 90. That is the figure recommended by outside consultants.
I considered the idea of establishing a copyright tribunal to discharge dispute resolution responsibilities under the Bill but decided not to adopt it. This was because a tribunal would be an excessively complex, expensive and bureaucratic approach to resolving the limited range of disputes in question, concerning only certain matters relating to copyright licence and licensing schemes, in the relatively small Irish market for protected material. This has been the experience in the United Kingdom and, in view of this, I thought the continued use of the Controller of Patents, Design and Trade Marks for this purpose would be more appropriate. I have, however, been impressed by arguments made by Deputies and Senators in the debate so far to the effect that the widening of his or her dispute resolution duties to the fields of performance and database rights may significantly increase the difficulty for the controller in discharging the dispute resolution responsibilities in question, efficiently and effectively.
Deputies will appreciate that the legislative and administrative arrangements would need detailed examination before an alternative tribunal could be established. In this connection, my officials sought the advice of the Office of the Attorney General as to the constitutionality of introducing into the Bill a section enabling the Government, on the Minister's advice, to establish a copyright tribunal by order at a later date should this be deemed desirable and to assume the copyright and related rights dispute resolution responsibilities assigned to the controller under the present text of the Bill. The advice of the Office of the Attorney General was that an enabling provision of this nature was likely to be held to be unconstitutional however it was designed, as it would assign excessive discretionary power to the Minister and the Government. On foot of this advice I decided not to proceed with the enabling provision amendment.
I remain to be convinced that the Irish market is likely to generate sufficient business to justify the establishment of a copyright tribunal, even on a flexible non-standing basis. Questions also arise whether the dispute resolution mechanisms assigned to the controller under other intellectual property legislation - trade marks, patents and industrial designs - are most appropriately and efficiently discharged by the controller at present.
Accordingly it is my intention to institute an examination by my Department as to whether this wider range of dispute resolution responsibilities could usefully be assigned to an alternative structure, perhaps along the lines of an intellectual property tribunal or commission. I am not in a position to anticipate the outcome of this study or to say when it may prove possible to conclude it. Should it be decided to establish a new dispute resolution tribunal in the intellectual property area it will, of course, be necessary for me to bring appropriate legislative proposals to the Oireachtas following from the advice already given by the Office of the Attorney General on the matter.
The enabling measure would not be possible but I am concerned that a proper study be done and the matter brought to the Oireachtas at the appropriate time.
I thank the Minister for that reply. It is clear that he has given the matter considerable thought. The enabling idea is one that could usefully have been included in the Bill. I find it hard to believe that it would be unconstitutional. It might not be very wise to establish it by means of secondary legislation but I find it difficult to believe that it would be unconstitutional. Attorneys General have often recommended the inclusion of enabling portions in legislation and these recommendations have stood the test of time.
Section 144 allows the controller to consider a reference under subsection (1), consider the subject matter and make an order either confirming or varying the proposed scheme. Current practice appears to be that, when the controller is presented with a query, because he does not have the expertise in his own office, he appoints an independent arbitrator. There is a need to put a mechanism in place to give them the resources they need to do the job they are asked to do. As the Minister for Enterprise, Trade and Employment, Deputy Harney, is aware, bringing in outsiders to act as inspectors or, in this case, arbitrators is a costly business. Clearly they have to be independent in making decisions. An independent arbitrator has been appointed in a specific case but I understand the system is not working and there is a blockage. This is not a reflection on the person concerned. I do not know the reason for the delay but each side is blaming the other for the failure to submit relevant papers. I have not been able to make a judgment as to which one of them is right.
There is a need to ensure machinery will be in place to provide a simple and effective means of resolving disputes. As Deputy Perry said there has to be a set time scale One cannot be left sitting around. Where someone fails to provide the required information, penalties should be imposed or a decision allowed to be made. This is provided for in other legislation. Where a company fails to register or submit accounts a letter is issued under the Companies (No. 2) (Amendment) Act. If the company fails to reply within one month the shutters come down and it is struck off the register. There has to be a simple and effective way of ensuring disputes are resolved. It is a pity this matter will not form part of the examination until after the Bill is implemented.
I disagree with the Minister of State that as a result of this Bill the controller will only have a limited number of queries to deal with. While that may have been the case under the 1963 Act, under the Bill there will be a far greater number of reasons for which matters will be referred to the controller. He or she will say to the Minister of State, "I am sorry, I just cannot continue doing this job based on this new legislation. We need to put a whole new system in place." I wish the Minister of State luck if he believes there is no need for the controller to adopt a hands-on approach.
Deputy Owen mentioned what might happen following the study. Section 348 deals with references of disputes to arbitrators. Subsection (2) reads: "The Controller shall decide whether or not to refer a dispute to arbitration no later than 3 months after the dispute has been referred to the Controller." That should allay some of the concerns of Deputy Perry who raised the question of time scales.
Is there a time scale within which the arbitrator must make a decision?
No. The Deputy's comments will add to our knowledge base when it comes to making a decision on this issue which is being discussed in a vacuum.
Will the operators of a licensing schemes be able to refer disputes to the controller under this section?
Yes. Subsection (1) reads, "...that operator, person or organisation may refer the scheme to the Controller in so far as it relates to cases of that description."
Subsection (1) reads:
A person who claims, in a case to which a licensing scheme relates, that the operator of the scheme has refused to grant or to procure the grant to him or her of a licence in accordance with the scheme, or has failed to do so within a reasonable period, may apply to the Controller for an order undersubsection (4).
Does the Minister of State have a briefing note on the section?
The section refers to cases where a person claims the operator of a scheme, for example, PPI or IMRO, has refused to grant a licence. Under the section he or she may apply to the controller for an order under subsection (4). The controller's decision that the claim is well founded and that the applicant is entitled to a licence, for example, is binding. The section is therefore very much designed in favour of a person who is not being treated properly by a licensing agency.
Is there a time limit within which the controller must make such a decision?
Subsection (1) provides that in a case covered by a licensing scheme, a person who claims that the operator of the scheme has refused to grant him or her a licence or to procure the grant to him or her of a licence in accordance with the scheme or has failed to do so within a reasonable period may apply to the Controller of Patents, Designs and Trade Marks for an order under subsection (4).
Subsection (2) provides that in a case excluded from a licensing scheme an application may be made to the controller by a person who claims that the operator of the scheme either refused to grant him or her a licence or to procure the grant to him or her of a licence or has failed to do so within a reasonable period and that in the circumstances it is unreasonable that a licence should not be granted or proposes terms for a licence that are unreasonable.
The definition of what constitutes "a case excluded from a licensing scheme" is outlined in subsection (3). Subsection (4) states that if the controller is satisfied that the claim is well founded he or she shall make an order declaring that the applicant is entitled to a licence on such terms as the controller may determine to be applicable in accordance with the scheme or reasonable in the circumstances. Subsection (5) states that such an order by the controller may be for such period as the controller may determine.
How much time does the controller have to make a decision?
There is no time limit involved.
On what will the licence fee be based? Will it be based on a percentage of the licensee's income? Is there an agreed procedure for determining the amount to be paid?
This section deals with issuing of licences by the collecting agencies.
Is any monetary gain envisaged?
They collect royalties in return.
How will these be calculated? Who determines the figures to be paid?
The royalties to be paid will be related to the amount of copyright material involved in the work.
From a business point of view, there is a huge grey area in terms of the moneys involved. The controller it seems will have considerable discretion.
The collecting agencies will decide the royalties to be paid. Disputes may be referred to the controller.
The collecting agencies will have autonomy to set a figure.
It is the market that decides. The same applies in other countries.
I move amendment No. 101:
In page 89, after line 51, to insert the following subsection:
"(8) A person who applies, in a case to which a licensing scheme relates, to the operator of the scheme for a licence in accordance with the scheme, is in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned from the date the application is received by the operator of the scheme until -
(a) a licence is granted by the operator of the scheme, or
(b) where a licence is refused, until the Controller grants an order under section 147, provided the applicant has applied for that order within a reasonable period of the refusal by the operator of the scheme and has complied with the conditions determined by the Controller, or until the Controller refuses an order under section 147.”.
I envisage the Minister will take this amendment on board. It seeks to provide for a transitional phase where a person who needs a licence, say, to play music can be regarded as being in possession of such licence until the decision is made, in other words, to cover the period between the date of application and the date of issuance of the licence.
Perhaps the Minister will give a favourable response.
I know what Deputy Rabbitte has in mind. I have looked at the section and I think there is a gap in the scheme. In regard to the particular circumstances covered by section 149, I am not sure this proposal would be consistent with upholding the legitimate interests of the rights holder That is the legal advice. However, I would like the opportunity to consider the matter further and, accordingly, request that the amendment be withdrawn on the understanding that it will be resubmitted on Report Stage. There is a great deal of detail in this section. The Deputy claims to be covering a particular gap in the system when a person applies for a licence. I am happy to look at it further.
I ask the Minister to take a chance and be courageous. He is piling up the work for Report Stage for his two hard-pressed officials sitting on either side of him. Those officials will never get out from under the pile of material they have to get ready for Report Stage. Given that the Minister accepts there is a gap in the scheme, he should take the chance. Surely somebody has looked at this amendment, it has been in since 18 January.
This sounds like a certain female in "Fr. Ted".
For the Minister's sake he should take the burden off their shoulders and take the chance.
To be fair to my officials, one of the reasons we might say we need further advice is that this is one of the most complex Bills - even today I saw a letter about it in the newspaper. We published a draft Bill and asked for comments and we are now on Committee Stage. There are some finer points on which we have to check. I would be happy to take a chance if it was an area I could stand over but I say to Deputy Rabbitte who tabled the amendment——
It is in all three names. That is why I am making the case.
——there is a case here that needs to be looked at. If the case stands up it will be part of the Bill. I can see the merit of filling all the gaps involved. Will Deputies take a chance and see if it comes back on Report Stage.
Thank you. That is positive.
On a point of order, has the Minister a deadline for passage of this Bill?
I commend all Deputies for their perseverance. I heard Deputy Rabbitte and others complain about the amount of legislation coming through the Department. You have seen nothing yet. In my area there is trade union recognition, minimum wage, design legislation, including the Bill under discussion, and the Chairman and members have to cope with all this. I appreciate this is a long and tedious process but I am willing to stick with it. If we could get one long day on the Bill we might wear each other down.
How stands the amendment?
The amendment is something of an orphan. Its status is uncertain. It is lost in the big world between Kildare Street and the draftsman's office. I never thought I would report such confidence in a Minister as I am in this Minister. Having regard to what he said, I am prepared to take another risk.
It is a serious issue. I am concerned about Report Stage and whether there will be enough time between the end of Committee Stage and Report Stage for officials and others to work on this. Hence the reason for asking if there is a deadline for the passage of the legislation.
It is ongoing. Following this meeting all these proposals will go directly to the office. If the amendment is a helpful suggestion and stands up legally it will be part of the Bill.
I am not sure I understand the concept of a licensing scheme and a licensing body. Can a licensing scheme be administered by a licensing body? Does a licensing scheme encompass the work of all licensing bodies? Will the Minister tease out licensing schemes and licensing bodies?
To go through it all - in the case of musicians they would authorise somebody to use their work. Copyright owners join a collecting society called a licensing body and musicians assign the copyright to agents such as IMRO or PPI. The licence would give authority to, in the case of the vintners, the pub to use the copyright material on their premises and the use of the copyright material in return is used for payment of royalties. The licensor is the person who gives the licence and the licensee, in many cases, is the pub.
From here on we are talking about once off activities. In the case of IMRO there would be a licensing scheme for, say, a concert, for which a special licence is required. Sections 150 to 154, inclusive, deal with this area. The approach in section 154 is similar to that in section 149.
Under section 151, if a collecting society is approached by a licensee it can refer the terms of the licence to the Controller. Under section 152, if a licensee has a licence which is due to expire he or she can apply to the Controller on the grounds that it is unreasonable that the licence is to be terminated. Sections 150 to 154 deal with a once-off event, for example, a concert, for which a special licence is required.
Are these sections relevant to section 166? The Minister will recall he was going to abolish certification of licensing schemes but decided, having been enthralled by our wisdom, to take it on board. We might now begin to understand these matters. Are these sections relevant to section 166, which deals with the certification of licensing schemes? Are they the same as the licensing schemes we are talking about? I understood certification meant that people who owned a copyright could seek to exclude something by certification. Is that right?
My advice is that it could be somewhat related to certification.
I submit it is definitely related to certification. I do not know where stands the proposed excision of section 166. In respect of the matters Deputy Owen raised, as I understand the Minister of State's formal position, he is resisting registration and dropping certification.
No, I am not.
He was going to do that but he changed his mind.
I amended that. I am allowing for certification and section 166 will apply now.
The Minister of State tabled an amendment but he withdrew it.
Questions were raised about how forthcoming certification would be in terms of applicants and so on. The Minister of State undertook to come back to us on that.
We had a good debate on this in relation to the writers collecting agency, ICLA. I came back to the members on this matter and I decided to leave section 166 as it originally stood.
That is correct, but the Minister of State will recall that we subsequently got a written communication from ICLA on this matter pointing to some anticipated pragmatic difficulties, and we asked him to examine that.
As Deputy Owen said, in addressing concerns in one section, one upsets someone else. We must examine all the difficulties that have been raised. I took that position on foot of our deliberations and we must follow up on it.
Under this section we are dealing with references and applications related to licensing by licensing bodies. We cannot ignore that section 166 provides for the certification of licensing schemes. To operate a licensing scheme, such a scheme must qualify as a certified licensing scheme and for such a scheme to qualify, one must demonstrate that one is operating a licensing scheme.
We are dealing with licensing bodies under section 150.
Yes, but it states, ". . . granted by a licensing body otherwise than pursuant to a licensing scheme, . . .". Section 166 is relevant in that if someone does not qualify to operate a licensing scheme, do they qualify to operate as a licensing body? I am completely at sea on this and I can only tell the Minister of State what is in the note, which I am sure the Minister of State also received.
The Minister of State might clarify that issue in relation to the licensing schemes.
It may be more appropriate to section 166.
Yes, it could be, but let us hear what the Minister of State has to say on it.
Section 166 deals with licensing schemes in a narrow perspective.
Deputy Owen's question is if one is not operating an approved certified licensing scheme, can one operate as a licensing body? Is that the Deputy's point?
Is the Deputy raising the problem relating to the ICLA again?
I am aware of the problem. I made a decision on that. My officials are currently examining this matter and we will try to address all the issues. As soon as we plug one hole we find another somewhere else, but we will do our best to deal with all these issues. We are not setting out to harm anybody.
I move amendment No. 102:
In page 92, before section 156, to insert the following new section:
156.-Where a person (including an undertaking or company) includes in a broadcast or cable programme any sound recordings and who-
(a) complies with any reasonable condition or notice supplied to them by the licensing body, and
(b) provides that licensing body with such information about their inclusion in the broadcast or cable programme as it may reasonably require, and
(c) makes payments to the licensing body that are required by the section and notified to the licensing body or in accordance with the amount which has been agreed by an order of the Copyright Controller,
such a person shall be in the same position as regards the infringement of copyright as if that person was at all times the holder of a licence granted by the owner of the copyright in question. Where this section applies to the inclusion in a broadcast or cable licence, it does so in the place of any licence.".
This proposed wording is along the lines of that contained in the UK copyright Act. It appears to tighten up an area here and would be of particular use to broadcasters. I would be interested to hear the Minister of State reply to this amendment.
Given that amendments Nos. 21 and 132 effectively removed the exclusive right which the earlier text of the Bill would have afforded to owners of sound recordings in favour of a right to the payment of equitable remuneration only, I do not think this amendment is necessary. It could introduce undesirable inflexibility into the relationship between owners of sound recordings and broadcasting and cable programme services. Accordingly, I would not be happy to accept the amendment.
Section 164 states, "The Minister may appoint a person to inquire whether other provisions are required......... to authorise the making by......." and so on. A description of the type of person is not given. Will the Minister of State elaborate on the type of person he has in mind? Subsection (4) states, "The person appointed to hold an inquiry under this section shall not recommend ...." etc. Will the Minister of State give us some idea of the kind of person he has in mind?
The purpose of section 164 is to enable the Minister for Enterprise, Trade and Employment to appoint a person - that is all the note states - to inquire into whether other provisions are required by way of a licensing scheme or general licence to authorise the making by or on behalf of educational establishments for the purpose of instruction of reprographic copies of literary, dramatic, musical or artistic works, original databases or typographical arrangements of published editions lawfully made available to the public. The need for the section follows from the powers provided for in sections 161 and 162, which facilitate the Minister in ensuring the establishment of blanket licences for reprographic copying by educational establishments. The procedure to be followed in the event of any inquiry under section 164 is to be laid down by regulations made by statutory instruments and subject in the normal course to annulment in pursuance of the normal practices of the Dáil. The general provision on the making of such orders is detailed in section 8.
The person holding the inquiry is bound not to recommend making new provisions unless he or she is satisfied that it would be to the advantage of educational establishments and would not conflict with the normal exploitation of works or prejudice the interests of copyright holders - section 164(4) refers. If a recommendation was to conflict with the normal exploitation of works and prejudice the interests of rights holders, a provision of this nature would not be possible as it would run counter to the terms of Article 9.2 of the Berne Convention. Accordingly, the Department has been specific in including this element in the provision to ensure that at no stage are the legitimate interests of rights holders impacted upon.
Section 164 goes on to provide that a recommendation for new provisions under the terms of section 164 shall specify any terms, other than the charges payable, on which licences under the new provisions should be available. The Department considers this as an appropriate remit for anybody undertaking an inquiry of the sort envisaged under the terms of section 164.
This is the section that is causing a problem for the ICLA.
The Deputy wanted me to keep this section. Is she now going to argue against it?
I am not. That is not the point the ICLA made. Maybe the problem has already been solved but the simplest thing to do is to read the note we received from the organisation.
Section 166 provides for certification of licensing schemes. Certification provides benefits for licensing bodies by virtue of the provisionsinter alia of sections 56, 87 and 165. It is clear that those sections are intended to have the purpose of supporting the collective management of rights. The ICLA maintains that it would need, for its continued operation, to qualify as a certified licensing scheme. In order to satisfy the conditions for certification the ICLA must first demonstrate that it is a licensing scheme. The position in this regard is uncertain because of the wording of the Bill.
It goes on to say that it must satisfy the conditions specified in section 166(2)(a). It provides that the Minister may by order certify a licensing scheme where he or she is satisfied that it enables the works to which it relates to be identified with sufficient certainty by members likely to require licences. The ICLA does not have the mandate of each individual author and it might not be able to be qualified to satisfy that condition and, therefore, will fail to qualify as a certified licensing scheme. Does the Minister understand that?
I think I do too. The ICLA claims the Bill would be improved by removing the distinction between schemes and licences and by disposing of the concept of certification.
We are retaining certification because we believe it is a good idea. However, is the Minister satisfied that given the argument the ICLA makes, it might not qualify as a licensing scheme? Will it qualify?
Obviously it is a legitimate body.
We are aware of the problems the Deputy mentioned. We are examining it with the Office of the Attorney General and I am anxious to resolve the problem. The case was made for certification on the last occasion and that is the way we intend to go. I will have to deal with it from that perspective.
The ICLA also pointed out that if certification is being retained, which it is, section 166(2)(a) should be amended to provide that the Minister is satisfied that the licensing body represents a sizeable proportion of rights holders in a particular class. As drafted, the section might mean that bodies must say they have absolute ownership of everything.
I am aware of that issue. We received that documentation and the matter is being examined.
It would be a mistake to excise certification. I cannot see how it is not possible to meet the reasonable request from ICLA, an established agency. It ought to be possible to do it.
I am of the same view. We will deal with it.
It can be included on Report Stage.
Amendment No. 141a is related to amendment No. 105a. Amendments Nos. 105a and 141a can be discussed together. Is that agreed? Agreed.
I move amendment No. 105a:
In page 100, between lines 11 and 12, to insert the following subsection:
"(8) The Controller may refuse registration to a licensing body if he or she considers that the scales of charges or proposed charges to be levied under section 168(6)(f) are excessive or inequitable.
The Controller shall review the scheme and determine a just and fair scale of charges.".
This refers again to the registration of a licensing body and depends, in a way, on compulsory registration. It brings in the issue of the scale of charges or proposed charges to be levied. Everybody has a concern about charges that are excessive or inequitable. The amendment provides that the controller should be in a position to review schemes and to determine a just and fair scale of charges in a case where a complaint was made to the controller that a scheme would be unfair or inequitable.
Section 17 gave primary copyright to the secondary rights holders. We are concerned that charges to be levied are seen to be fair and just and that there would be some system whereby hoteliers, nightclub owners and others in such circumstances could apply for a review of a scheme in order to determine that charges would be fair and just. The Minister should take on board the spirit of this amendment.
I understand the Deputy's point but I am not accepting the amendment. I am of the view that to place such a burden on the controller, that is, assessing licensing schemes in the abstract, would be over-burdensome and unrealistic. In any event, the Bill already contains provisions in Chapter 16 for the referral of licensing schemes whose charges are excessive or inequitable to the controller for determination.
These provisions are an adequate safeguard for licensees. They are also more realistic as the controller will make a decision on such referrals based on the facts presented to him or her by the parties concerned. These provisions are also more realistic as the controller will make a decision on such referrals to him based on the facts presented to him by the parties concerned. We can deal with the issue the Deputy raised in that way.
How will this operate? If there is a dispute when a society or collecting agency looks for money, when does it have to be paid? How long will it take the Controller to deal with the issue? Will the Controller's findings be binding or could it drag on? Can the hotelier or night-club owner continue to operate in the meantime? Will the collecting agency have to wait indefinitely for its money in the event of a dispute? All these issues could be settled beforehand by the Controller which would lead to agreement on all sides. The collecting agency or society should not be in a position to say to a hotelier or night-club owner that he cannot continue to operate in business until he pays, because that would make them the primary copyright owners. On the other hand, the hotelier or night-club owner should pay his dues as he wishes. This is a major issue of contention which has not been resolved in the Bill. Perhaps the Minister needs to look at it again.
In the event of a dispute, royalties are still payable while the matter is being dealt with. If a person has a complaint, he can go to the Controller and the matter will be resolved. Section 344 which deals with the jurisdiction of the Controller states that it "shall be a function of the Controller pursuant to references or applications under this Act to determine, within a reasonable period of time, disputes arising under this Act between licensing bodies and persons requiring licences or organisations claiming to be representative of those persons". The Deputy wants to insert a specific requirement. However, because of the different nature of different disputes it is better to leave it to the system as I have outlined. The type of problems which arise can be dealt with under those procedures. It is not necessary to insert this amendment.
Royalties are still payable, but is there a limit to the amount which can be requested? I know that most collecting agencies and societies are reputable, but if one decides to charge whatever it wants, what safeguards does a businessman have?
Will the State give assistance to bogus bodies to collect royalties? Deputy Stanton opened up the debate about the legality of some of the collecting agencies.
The State does not condone bogus bodies.
It could happen, despite the best intentions in the world.
We are not involved in supporting illegal practices. Questions have been raised about royalties. The market will dictate the activities of collecting agencies in this area. I do not have any problem starting with this section when we resume our discussion on Committee Stage. We can discuss any other outstanding issues and if I can add to what I have said, I will.
I propose that we adjourn until 11.45 a.m. on Friday, 3 March 2000 to consider the National Minimum Wage Bill. The time has been changed from 11 o'clock to accommodate Members who have other commitments. Notification will be issued in due course. Is that agreed? Agreed.