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

I welcome the Minister and his official to the meeting. It is proposed that we work from now until approximately 6 p.m. Is that agreed? Agreed. This Bill had been left aside to expedite the passage of the National Minimum Wage Bill. When we last considered the Copyright and Related Rights Bill on 23 February, we had agreed section 167 and had moved on to our consideration of section 168 on which we will resume today. To date, we have spent almost 22 hours considering this Bill and I would be grateful for Members' co-operation in progressing the Bill over the course of our coming meetings. A new list of groupings and a list of additional amendments have been circulated.

SECTION 168.

Debate resumed on 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 undersection 168(6)(f) are excessive or inequitable. The Controller shall review the scheme and determine a just and fair scale of charges.”.
-(Deputy Stanton).

Amendment No. 141a is a related amendment and both amendments are discussed together, by agreement.

The Minister will be aware of the concerns expressed about the role of the Controller and the manner in which this has operated to date. I am sure he is also aware of the concerns expressed by licensing bodies such as the vintners' and hoteliers' associations. I have received correspondence on this matter from people who are concerned that the Bill will give licensing bodies and collecting agencies a great deal of authority and power. Throughout the course of the debate on this Bill, we have sought assurances from the Minister that this issue would be regulated. Neither hoteliers nor publicans want to avoid paying their dues but, in the past, some of them have had unpleasant experiences. One case ended up in the Supreme Court.

We want the Controller to be authorised to refuse registration to a licensing body if he or she considers that the scale of the proposed charges to be levied under the section are excessive or inequitable. The Controller should be able to review the scheme to determine a fair and just scale of charges. We feel the proposal contained in the amendment would be a fair way of doing this. We are concerned about the ability of the Controller and the office to carry out the additional work which they will be asked to do, given the resources which are available to them. The Minister agreed that it would be important to consider this issue. In other jurisdictions, controllers can intervene to determine scales of charges. Many people would be relieved if that were to happen here also.

I will not cast any aspersions on any of the current licensing bodies or collecting agencies but there is a concern that anyone could actually set himself or herself up as a licensing agency and, under the legislation as drafted, could demand payment of royalties. It would be for the defendant to prove that he or she did not own the music. I am not disputing that the collecting agencies deserve to be paid for the work they do but, should a dispute arise, we want a fair system to be put in place which would allow it to be adjudicated on quickly and fairly. To date, the Minister has not come up with a system which would satisfy everyone. If this amendment is not accepted, terrible problems could arise at a later date. This is a very technical Bill on which we have all worked diligently. Many amendments have been made to the Bill and it is incumbent on us not to rush the debate at this stage but rather to do our job properly. If the Minister is not prepared to accept this amendment, will be inform us how he proposes to ensure that a just and fair scale of charges will operate, one which will be put in place speedily without people having to resort to court where huge expense and delays are incurred?

Section 168 is described as relating to the "registration of copyright licensing bodies" and, quite frankly, that conveys a false impression as there is no compulsory registration of copyright licensing. If I did not know a great deal about this legislation, I could be led to believe that section 168, which governs the registration of licensing bodies, would allow me to check whether A.N.Other was registered as a copyright licensing body. Whether or not A.N.Other was on the list would not necessarily mean anything.

This issue cuts to the heart of the need to amend this legislation. We should not make fish of one and flesh of another. All licensing bodies should be registered. I understand the Government is due to introduce legislation whereby people who wish to provide security services, be they bouncers at discos or security guards for businesses or on building sites, will have to be registered. If I wish to employ someone to provide security for my property, I can go to the Garda or wherever the register is kept, find out if it is a bona fide company and feel safe that someone is providing security for my property. The licensing bodies should be registered. That is not to say that all the groups interested in the legislation originally wanted this, but they recognise it is a better way to control the business. People will then know where they stand and they will all have to obey the same rules. The case has been made that as long as registration does not exist and the Controller does not have the kind of powers proposed in amendment No. 105a whereby the Controller can refuse registration to a licensing body if he or she considers the scales of charges are excessive or inequitable, there will be a return to the situation which has existed.

I am sure some groups will challenge the figures which show an increase in charges in one instance of 1,411% between 1983 and 1995. The increase in another case is just 27%. As business grew, as more and more discos and pubs had music and people had more money, naturally the associations representing the copyright owners realised they could increase charges. I am not saying that people should not pay for the use of copyright material but there should be some way of controlling excessive increases. There was a time when taxis were in short supply and they felt they could increase charges. People were often so pleased to get a taxi that they did not mind that the price had increased.

We must be careful not to leave in place the unsatisfactory situation which has existed under the 1963 legislation. It is important that any body purporting to be a licensing body should be registered. This is a protection to the bona fide licensing bodies that exist at present. If someone arrives from another country and purports to represent the owner of a copyright, there is no way of checking this out. Section 169 provides that a certificate shall be evidence of the right of the licensing body. The Minister is putting in place a law which will not work and he will then be sorry that he did not listen to the Opposition and regulate the business for everyone's sake. Those who run bona fide businesses and represent copyright owners have a right to be paid properly. However, the situation which exists at present is unsatisfactory. The legislation is written on the basis of what exists at present and this does not work. There is an old adage, "If it ain't broken, don't mend it". In this instance, the situation is broken and needs mending and section 168 will not achieve this.

I referred to the point made by Deputy Owen concerning the absence of compulsion for registration and I support her argument. Have discussions taken place with the Controller on the implications of the Bill for him and his office?

The answer to the Deputy's last question is, yes. The discussions are ongoing because there are huge implications for the Controller.

I wish to make two points about the specifics of amendment 105a, the generality of the section and the question of “voluntary” versus “compulsory”. On the last occasion, we argued the amendment would place a burden on the Controller in that he would have to assess the licensing scheme in the abstract. That would be unrealistic. We are also saying that the Bill already contains provision for referral. In that case, the provisions are more realistic as the Controller would make a decision on the referrals made to him based on the facts presented to him by the parties concerned. That was the thinking behind our opposition to this amendment and this is still the position.

In the context of what has been said about "voluntary" versus "compulsory", I have asked my officials if we could make the voluntary licensing scheme compulsory. Obviously this would have to be done on our terms and on the basis of our own thinking and resources. We have been referring a lot to Report Stage but it is that type of Bill. This will take time but I will consider any issues which I think are worthy of my support. I will consider making licensing compulsory and I do not see why this should be a problem for the collecting agencies.

How stands amendment No. 105a?

The Minister of State has said that he will come back to us on the amendment. The main thrust of the amendment is to provide the Controller with the resources to monitor matters and prevent wrangling, rowing and bad feeling. He should be in a position to act before the event happens rather than have to deal with it when a row is taking place and people have dug trenches for themselves. Less resources might be needed if the Controller were to act initially rather than after the event when legal action might take place. It might be useful to give the Controller an overseeing role.

There is a provision to allow tardy arbitrators to be removed.

If the Minister includes compulsory registration, he should consider our amendment. If there is no compulsory registration, people need not register.

Amendment, by leave, withdrawn.
Section 168 agreed to.
SECTION 169.
Question proposed: "That section 169 stand part of the Bill."

This section states that a certificate grant shall include those particulars specified in subsection 6 and the certificate shall be evidence of the right of the licensing body until the contrary is proved. Here again is a situation where once the person applying for registration has given the information wanted, they then become registered. They must give the name of the applicant, the chairperson and names of other board members, a copy of the memorandum of articles, details of the scheme, details of the scale of charges and the class of rights and owners represented.

That is a fairly comprehensive list to have to submit. Is the Minister of State sure that this list does not need to be strengthened? A copy of the memorandum and articles of association or partnership, as the case may be, of the applicant is mentioned, but the section does not require any agreement signed by the composer or writer - maybe it is included here - to show that this group has the right to represent them. Is that included in paragraph (d)?

I have another commitment and I nominate Deputy Lenihan to take the chair. Is that agreed? Agreed.

The list of details to be supplied is quite comprehensive and I will look at it in the context of the voluntary licensing scheme changing to a compulsory scheme.

Question put and agreed to.
SECTION 170.
Question proposed: "That section 170 stand part of the Bill."

Why should a body register? There seems to be a lot of hassle involved. What advantage is there in registering if it is not compulsory? If the licensing body has to change its charges, which is how I interpret this section, it must provide a control in writing with details of proposed charges within not less than one month of the charges coming into effect. The registration shall be cancelled if it fails to comply with that. So what? What is the big advantage of registering in the first place?

It comes back to the point of voluntary versus compulsory, but it would assist transparency with users and the public if that was done.

The Minister of State seems to be missing the point. As long as this is not compulsory, if I were a licensing body I would not bother going through all this, gathering the memorandum and putting the charges in - there is no advantage in registering under section 168 if one is left with all these regulations. That is why one needs compulsory registration, otherwise one could end up with nobody registering.

We are examining this.

With respect, all these sections are academic as things stand. Reputable licensing bodies will register under section 170 but what if a body is not reputable? It can snub the Minister and the Department and go off and do its own thing. There is no reason to register. If a body registers and fails to comply, cancelling the registration, so what? What is in it for that body?

We are examining this matter. The agencies we know see an advantage in registering, but I see the Deputy's point. I have told the Deputy what we are doing and now we are opening the case again. I see no reason to repeat myself.

We are debating a point that is totally academic, to judge from the Minister of State's comments. He cannot tell us what advantage there is in a body registering in the first place and if that is the case this section is theoretical and academic. Bodies can decide not to bother registering and it does not matter if their registrations are cancelled. Perhaps I am missing something.

Is the Minister of State relying on this being voluntary?

I have already given a commitment to have my officials look at the case for compulsory registration so these arguments are academic. We are probably asking why it is advantageous to register now and if we were in the private sector and involved with one of these agencies we would probably see an advantage in doing so from the point of view of transparency to users. The tenor of our discussion has changed from a few minutes ago when I asked people to look at the complexities involved.

It is important that the Minister of State realises that yesterday on Report Stage of the National Minimum Wage Bill Deputy Rabbitte and I got a shock, and I am sorry it is tiresome. I respect the Minister of State saying he will look at it. My fear is that he may come back on Report Stage and say that nothing can be done, having been advised by the Attorney General and others that it cannot be done. We cannot then discuss the section.

That is right.

Deputy Rabbitte got a shock yesterday when he heard this from the Leas-Cheann Comhairle. His face went white and I thought he would collapse. That is the reason we will remind the Minister of State why each section is utterly superfluous. He will be able to clear the Bill and all chapter 17 in one fell swoop.

I was involved in the minimum wage debate and I know how the debate was curtailed.

The rules for Report Stage debate only allow debate on amendments. If the Minister of State says he cannot amend a section and we have not tabled an amendment on each section he is storing up trouble. We will table an amendment to every section to discuss them. He will have to make a promise.

In fairness to the Minister of State he takes a different approach from that of the Tánaiste in these matters. I do not think Deputy Rabbitte will be as aghast as he was yesterday.

The Tánaiste accepted a number of amendments and I would like to think we adopt the same attitude. We are dealing with the same personalities. We all acknowledge the minimum wage Bill was improved greatly and that is not a platitude.

The Minister of State is missing the point. We are precluded from raising these points on Report Stage unless there are amendments to the section. If Deputy Stanton and I believe that the Minister of State's hand needs to be strengthened we will make that suggestion.

The Minister of State recognises the Deputy's goodwill.

Question put and agreed to.
SECTION 171.
Question proposed: "That section 171 stand part of the Bill."

The same reservations apply here as to the other sections of the Bill.

Question put and agreed to.
SECTION 172.
Question proposed: "That section 172 stand part of the Bill."

This is a real case in point. How frightening it will be when for someone who seeks to register and is registered to be told by the Controller that they will be removed from the registered list. People will quake in their shoes. There is no sanction or penalty. This states that the Controller may refuse registration and then remove a licensing body from the register where its application is refused or its registration cancelled. It will be penalised in various ways but the Bill is silent on the terrible punishment that befalls the person removed, other than being removed. A public notice is not even published in the newspaper. It means nothing.

I accept the Deputy's point. I will ask my officials to look at the compulsory option.

Question put and agreed to.
SECTION 173.
Question proposed: "That section 173 stand part of the Bill."

I presume this is a regular catch-all section.

Question put and agreed to.
NEW SECTIONS.

The acceptance of amendment No. 106 involves the deletion of section 174 of the Bill. Amendments Nos. 106 to 113, inclusive, amendment No. 1 to No. 108, amendments Nos. 1 and 2 to amendment No. 111 and amendments Nos. 142, 143, 144 and 153 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 106:

In page 101, before section 174, to insert the following new section:

174. (1) Copyright shall not subsist in a work unless the qualification requirements of this Chapter are satisfied in relation to-

(a) the author in section 175,

(b) the country, territory, state or area in which the work was first lawfully made available to the public in section 176,

(c) in the case of a broadcast or a cable programme, the country, territory, state or area from which the broadcast was made or from which the programme was sent insection 177.

(2) Subsection (1) shall not apply in relation to the Government or the Oireachtas or to the copyright of prescribed international organisations.

(3) Where the qualification requirements specified in this Chapter or in sections 180, 183 or 185 are satisfied on one occasion in relation to a work, the copyright in the work shall not cease to subsist by reason of any subsequent event.".

All these are Government amendments, with the exception of amendment No. 110 and amendments Nos. 1 and 2 to amendment No. 111 in the name of Deputy Rabbitte. Works and performances qualify for protection by reference to geographical factors. National copyright and related rights law operates only in the territories of the states enacting them. Where work is first made available or a performance takes place in a particular country, they will qualify for the appropriate form of protection under the laws of that country. Works and performances by citizens or persons domiciled or ordinarily resident in that country will also qualify for similar protection.

States which are signatories of the Berne Convention, the one loved by Deputies, also extend the protection of their copyright laws to works qualifying for similar protection under the laws of other countries which are signatories of the convention, on the same basis as applies to their own national works, that is, on the basis of what is known as national protection. The Bill, as published, will extend the protection of Irish copyright law and performance protection beyond the standards required by international law to include all works and performances, irrespective of who made them or their geographical connection. The Government will, of course, reserve the right to restrict such protection in relation to particular countries which clearly do not provide a satisfactory standard of protection for Irish works and performances.

This scheme of qualification to the world, literally, was adopted partly in the interests of simplicity and transparency in the treatment of qualifications and partly in the interests of providing protection for copyright works and performances on the most comprehensive basis possible. It has, however, been pointed out to my Department that this approach has a disadvantage. A world qualification would inevitably result in Irish copyright law protecting materials connected with countries not providing a like standard of protection for Irish protected materials. This might not be of great importance in the field of copyright, where a large majority of countries now recognise the national treatment obligations of the Berne Convention. In relation to performance rights, however, there are still significant differences in standards of legal protection.

A notable difference relates to the protection of audio-visual performances, such as film performances, where no comprehensive international agreement on reciprocal protection of rights yet exists. A result of this could be that unless the Government made a number of restriction orders, including one covering the United States of America, Irish collecting societies could find themselves called upon to collect royalties in respect of the playing of foreign performances in Ireland where Irish performers could claim no similar advantage in the countries of origin of those performances, which is obviously the net point.

Having carefully considered the situation, I concluded that the expansive approach of extending copyright and performers' rights qualification to the world would be premature at least. Accordingly, the Government amendments in this group are intended to secure that the protection of copyright law will extend specifically to countries with which Ireland shares mutual obligations to provide national treatment under stated international agreements or the EEA agreement. It will also be possible for the Government to provide, by order, for mutual national treatment where Ireland enters into bilateral agreements with individual countries, governing mutual applications of copyright and performance rights.

Negotiations have opened at official level in the World Intellectual Property Organisation on a possible international agreement broadening the scope of internationally recognised rights for performers. If successful, these negotiations may make a reappraisal of this policy possible in a few years. Nonetheless, given the present state of international law on the subject, I hope the committee will agree the change I propose represents the best course at present. Deputy Rabbitte's amendment No. 110 is not appropriate, but we can discuss that later.

Regarding amendment No. 1 to amendment No. 108, in the name of Deputy Rabbitte proposing the insertion of "or a computer programme" in subsection (1), I ask the Deputy to withdraw it on the basis that it is unnecessary. The definition of literary work in section 2 covers a work including a computer programme. Literary work is already contained in subsection (1), which will accommodate the Deputy's intentions. I cannot accept amendment No. 2 to amendment No. 111. Subsection (3) from the proposed new section 179 gives the Government a degree of flexibility in responding to the emergence of new international agreements in the area of copyright and, very importantly, in adjusting the scope of national treatment to the particular scope of new agreements which may only address particular elements of copyright protection rather than its whole scope. Amendment No. 1 to amendment No. 111 is a correct technical amendment which I accept. I thank Deputy Rabbitte for attending to this point.

I accept the Minister's point about my amendment No. 1 to amendment No. 108 being included in the existing definition of literary work. What is the Minister's argument for the redundancy of amendment No. 110? The intention is that we should not be more generous with foreign companies than they are with us.

I am radically changing the thrust of this to accommodate that point. Deputy Rabbitte identified the issue, we want to protect our interests. The Deputy's amendment will effectively be dealt with in my broad approach.

That seems reasonable. The Minister is accepting my technical amendment No. 1 to amendment No. 111. Regarding my amendment No. 2 to amendment No. 111, the Minister spoke about giving the Government the right to respond to new developments.

Subsection (3) of the proposed new section 179 would give the Government a degree of flexibility in responding to the emergence of new international agreements in the area of copyright and in adjusting the scope of national treatment to the scope of new agreements which may only address particular elements of copyright protection. I suggest this meets what the Deputy has in mind.

That sounds logical. Subsection (3) provides an all-embracing power which in other contexts would not only be undesirable but also unconstitutional. Essentially the Government is being given leave to amend the Bill unilaterally. It may, by order, add to or delete from the list of agreements, treaties and conventions, in other words, it may radically alter the Bill. It is a wide-ranging power.

This is a massive number of amendments to a Bill which was in gestation for many years and passed by the Seanad without amendment. Is the principle similar to that applied in electoral law whereby we allow citizens of other member states of the European Union to vote in elections here where this right is reciprocated, in other words, if Irish citizens benefit from having their music played in other countries this will be reciprocated? That is what I understand the amendments to mean. If I have got it wrong I will have to go back to the drawing board.

The definition also appears in the new section 175 and amendments Nos. 108 and 109. Amendment No. 142 states that "qualifying person" means an Irish citizen, or an individual domiciled or ordinarily resident in the State. Can the Minister of State reassure me that "domiciled" and "ordinarily resident" have the same meaning as there is a difference in tax law? Can one be both or does one have to be one or the other?

They could conceivably be coincident in certain circumstances but I am working on the presumption that it is the intention of the person concerned that determines domicile. If it is the intention of a person to reside permanently in the country in which he or she is residing he or she would have foreign domicile. As Deputy Owen said the matter becomes complicated in tax law as there are certain exemptions relating to the number of days one may be resident in this jurisdiction and at the same time effectively be a tax exile, but there are circumstances when "ordinarily resident" and "domiciled" could be coincident.

Deputy Rabbitte is correct. The inclusion of both in the definition will allow a broader or liberal interpretation. For legal purposes this is probably the best course of action.

Deputy Owen's comparative analysis is correct. If we were to opt for the world model we would end up providing greater protection for certain US performers. We are providing instead for national treatment. This is a radical amendment in response to issues raised on Committee Stage in the Seanad and representations made. This is complex and comprehensive legislation. That is the reason it is taking so much time to deal with it. If we were to opt for the world model we would have to introduce specific orders stating that protection is not being provided in respect of certain countries. It would be a more complex and difficult route. If the levels of international protection improve the matter can be reconsidered. By providing for national treatment only we have accommodated some of Deputy Rabbitte's amendments.

While I will have no difficulty in revisiting the issue, we have been informed that subsection (3) of the new section 175 is legally sound in terms of the powers granted to the Government.

I congratulate the Minister of State on introducing this important amendment. What is the current position on negotiations between Ireland and the United States of America? Will the Minister of State list the other countries which have been excluded from the definition of "qualifying country" and indicate the status of current negotiations?

There will be national treatment. Civil performer's rights have not yet been provided for. That is the current positionvis-à-vis the United States. Is the Deputy referring to the action being taken by IMRO on the playing of music in certain restaurants and bars?

That is a related matter. The protection provided for some of our artists is not adequate and a case is being taken at international level. There has been no final adjudication but it is an example of the need for good solid international protection. We are currently looking for national treatment to ensure protection for our own artists. The audio-visual performance area is one about which we would have concerns.

Is that the position where the Irish artists get nothing from the moneys collected from the pubs and such like?

A case is being taken by the European Union on behalf of IMRO.

In terms of our bilateral agreements with the United States, is the Minister saying it is our artists who are being disadvantaged in terms of the performance area? I am not entirely clear how this amendment rectifies that.

On the question of Irish artists in America, we are not satisfied with the level of protection for artists in the United States with regard to royalties in certain areas. That is the reason the case is being taken at WTO level by IMRO on behalf of Irish artists.

Does this come back to the domicile resident issue? Are we talking about Irish artists visiting the United States or is there a domicile requirement?

It is a question of Irish artists' music being played in America.

Is that what the Minister means, in this context, by performers? He made a specific reference to performers being disadvantaged, or that was the meaning I took from it.

It is a separate matter I am raising. It would be a composers' rights in this case.

Do members want to raise any other issues with the Minister in relation to sections 142, 143, 144 and 153, which are related to this section, before we move on?

I notice that amendment No. 107, which is in this group, will have the effect of removing the current section 175, and section 175 refers to the qualification by reference to the author. With regard to joint authorship, if a work is jointly written or composed by a number of people, some of whom are not qualified, would that work be allowed the same protection? Subsection (3) states: "Where a work qualifies for copyright protection under this section, only those authors who satisfy the requirements ofsubsection (1) are taken into account for the purposes of . . . ” and it lists a whole range of sections. Has the Minister any note on that? Is there protection for, say, a group of people who get together to produce a piece of work like Riverdance or something like that?

This refers to the work being protected, not the author. Is that the point the Deputy is making?

It states that the work shall qualify for copyright protection. If there are five authors, only one of whom is a qualifying person, say, an Irish citizen or a citizen or subject of an individual domicile, is it the case that there is no disqualification on copyright on the work? There does not have to be a certain percentage of the authors qualifying.

I am told that as long as one of the authors qualifies, the work is protected.

Subsection (6) of the new section 175 refers to the material time and also a substantial part of that period. I assume the courts will determine what a substantial part will be. Perhaps the Minister will explain those two subsections a little more.

I would remind everybody that we are dealing with all the amendments.

I will just trawl through them to make sure I do not have any other questions.

What are the two questions again, Deputy?

Will the Minister explain these two subsections, particularly "material time"?

I think the concept of material time is challenging us.

Qualification has to exist at a particular time and the courts would decide on that. I am told that would be a standard provision in copyright legislation.

You are not meant to be Sir Humphrey. You are meant to be the Minister.

The Minister is losing Brownie points.

What is the "material time"?

In regard to whether work has not been lawfully made available to the public, it is stated, "when the work was made, or where the making of the work extended over a period, a substantial part of that period . . . ". Material time is different depending on whether the work was or was not lawfully made available. What would be an example of (a)?

An unpublished book would be an example of that.

The publishing of an excerpt from a book that jumps the gun——

Written by a person who was domiciled in Ireland, for example, "which had not been lawfully made available to the public when the work was made or where the making of the work extended over a period".

That determines whether the protection exists, is that the case?

Are any further explanations needed or are we deep in exegesis on this?

I notice on the new Schedule a reference to the EEA. We know about the EU group of countries but does the EEA agreement referred to there extend beyond the EU?

The EEA includes Iceland, Liechtenstein and Norway.

Does it include Latvia, Lithuania and Estonia?

No, not at the moment.

I know that in the work permit law, EEA citizens are entitled to come here.

It is the EU plus three.

What are they?

Liechtenstein, Iceland and Norway.

To return to the question of "material time", will the Minister consider tabling an amendment on Report Stage to define what that means, or can it be defined?

I am told we cannot do that too tightly because we need to leave room for the courts to interpret, but I will look into that.

I am talking about the concept itself, not the timescale. It is not properly defined in the Bill.

Is it safe to assume that all material discussion has occurred on section 174 and on the Minister's amendment No. 106?

Amendment agreed to.
Section 174 deleted.

I move amendment No. 107:

In page 101, before section 175, to insert the following new section:

175.-(1) A work shall qualify for copyright protection where the author was at the material time a qualifying person.

(2) For the purposes of this Part a qualifying person shall be-

(a) an Irish citizen;

(b) a citizen or subject of, or an individual domiciled or ordinarily resident in the State, or in any country, territory, state or area to which the relevant provisions of this Part extend;

(c) a body incorporated under the law of the State or of any country, territory, state or area to which the relevant provisions of this Part extend;

(d) a partnership or unincorporated body formed under the law of the State or of any country, territory, state or area to which the relevant provisions of this Part extend; or

(e) any other body in the State or of any country, territory, state or area to which the relevant provisions of this Part extend.

(3) Where provision is made by order undersection 179, a work shall also qualify for copyright protection where at the material time the author was-

(a) a citizen or subject of, or an individual domiciled or ordinarily resident in a country, territory, state or area to which the order relates;

(b) a body incorporated under the law of a country, territory, state or area to which the order relates;

(c) a partnership or unincorporated body formed under the law of any country, territory, state or area to which the order relates; or

(d) any other body in any country, territory, state or area to which the order relates.

(4) Subject tosubsection (5), a work of joint authorship shall qualify for copyright protection where at the material time any of the authors satisfies the requirements specified in subsection (1) or (2).

(5) Where a work of joint authorship qualifies for copyright protection only under this section, only those authors who satisfy those requirements shall be taken into account for the purposes of-

(a) section 23(1)(a) (first ownership of copyright; entitlement of author or author’s employer);

(b) section 24 (duration of copyright in a literary, dramatic, musical or artistic work or an original database); and

(c) section 84 (anonymous and pseudonymous works; acts permitted), with reference to section 2 (definition of ’anonymous work’ and definition of ’pseudonymous work’) section 2(5) and (6) (deemer of authorship to be known), and 33 (expiry of copyright).

(6) The material time in relation to a literary, dramatic, musical or artistic work or an original database, shall be-

(a) in the case of a work which has not been lawfully made available to the public, when the work was made or, where the making of the work extended over a period, a substantial part of that period; or

(b) in the case of a work which has been lawfully made available to the public, when the work was first lawfully made available to the public or, where the author had died before that time, immediately before his or her death.

(7) The material time in relation to other descriptions of work shall be as follows:

(a) in the case of a sound recording or film, when the sound recording or film was made;

(b) in the case of a broadcast, when the broadcast was made;

(c) in the case of a cable programme, when the programme was first lawfully included in a cable programme service;

(d) in the case of the typographical arrangement of a published edition, when the edition was first lawfully made available to the public”.”

Amendment agreed to.
Section 175 deleted.

I move amendment No. 108:

In page 101, before section 176, to insert the following new section:

176.-(1) A literary, dramatic, musical or artistic work, sound recording, film, typographical arrangement of a published edition or an original database, shall qualify for copyright protection where it is first lawfully made available to the public-

(a) in the State; or

(b) in any country, territory, state or area to which the relevant provision of this Part extends.

(2) For the purposes of this section, lawfully making available to the public a work in one country, territory, state or area shall be deemed to be the first lawful making available to the public of the work even where the work is simultaneously lawfully made available to the public elsewhere; and for this purpose lawfully making available to the public of a work elsewhere within the previous 30 days shall be deemed to be simultaneous"."

I move the following amendment to amendment No. 108:

In the third line of subsection (1), after "database" to insert "or a computer program".

My amendment is encompassed by the definition of literary work.

Amendment to amendment No. 108, by leave, withdrawn.
Amendment No. 108 agreed to.
Section 176 agreed to.

I move amendment No. 109:

In page 102, before section 177, to insert the following section:

177.-A broadcast shall qualify for copyright protection where it is lawfully made from, and a cable programme shall qualify for copyright protection where it is first sent from a place-

(a) in the State, or

(b) in any country, territory, state or area to which the relevant provisions of this Part extend”.”

Amendment agreed to.
Section 177 deleted.
Amendment No. 110 not moved.
SECTION 178.
Question proposed: "That section 178 stand part of the Bill."

The section states, "The Government shall not exercise the power to make regulations provided for bysection 177...”. Is this still relevant, given the amendments made to section 177?

The section is self-explanatory. It follows the same plan and has the same purpose as section 272, in relation to performers' rights. There is no equivalent provision in existing Irish or UK legislation. Section 178 generally follows section 180 of the Hong Kong Copyright Ordinance, 1997. However, the textual modification of the Hong Kong model suggested in the context of section 272 is retained in section 178 for reasons of textual consistency. It is not intended to undermine the intended function of the provision. Section 178 is considered with a view to complying with Ireland's obligations under EU and international law. It is the belief of the Department that it is in compliance with all such requirements.

I do not think that told members an awful lot. In layman's terms, the purpose of this is to ensure we cannot make orders to break international law.

It is a restriction in case someone got a rush of blood to the head. My question is about whether, given the changes made to sections 174 to 177, inclusive, this section needs to be amended. Does it refer to the new section 177?

The Deputy is right that we need to check all the references as a result of the amendments.

It probably does stand.

It is designed to keep us——

It is in case the Minister of State, Deputy Kitt, becomes excited about something and exercises a power to make a regulation against another country.

Question put and agreed to.
NEW SECTIONS.

I move amendment No. 111:

In page 103, before section 179, to insert the following new section:

179.-(1) The Government may make an order to extend the provisions of this Part and, in particular, the provisions as to qualification of works for copyright protection insection 175, 176 and 177, to any convention country, territory, state or area.

(2) The effect of the extension of copyright protection specified insubsection (1), may, where so stated in the First Schedule to this Act, apply to a specified part or parts of the international multilateral agreement, treaty or convention in question.

(3) The Government may, by order, add to or delete from the list of agreements, international multilateral agreements, treaties or conventions contained in theFirst Schedule to this Act, or specify such part or parts of the said multilateral agreements, treaties or conventions to which the extension of protection shall apply in accordance with the terms of subsection (2), having regard to the obligations of the State under relevant multilateral agreements, treaties and conventions.

(4) The effect of the extension of the provisions ofsections 175, 176 and 177 relating to qualification of works for copyright protection under the terms of this section shall be that works qualifying for copyright protection by reference to their authors or geographical provenance under the equivalent provisions of the law of a country, territory, state or area party to an agreement, treaty or convention named in the First Schedule to this Act shall qualify for copyright protection under Irish law, to the same degree as if they (those works) had qualified for such protection directly under sections 175, 176 and 177.

(5) For the purposes of this section, 'Convention country, territory, state or area' means a Convention country, territory, state or area which is a party to a multilateral agreement, treaty or Convention relating to copyright to which the State is also a party, and which is specified in theThird Schedule”.”

I move the following amendment to amendment No. 111:

In the second line of subsection (2), to delete "to this Act".

The Minister of State has said he will accept this amendment to the amendment.

Amendment to amendment agreed to.
Amendment No. 2 to amendment No. 111 not moved.
Amendment No. 111, as amended, agreed to.

I move amendment No. 112:

In page 103, before section 179, to insert the following new section:

179.-(1) The Government may by order make provision for applying in relation to a country, territory, state or area other than a Convention country, territory, state or area within the meaning ofsection 179(5) all or any of the provisions of this Part specified in the order, so as to secure that those provisions apply in relation to-

(a) individuals who are citizens or subjects of, or who are domiciled or ordinarily resident in, that country, territory, state or area as they apply to persons who are domiciled or ordinarily resident in the State,

(b) bodies incorporated under the law of that country, territory, state or area as they apply in relation to bodies incorporated under the law of the State,

(c) partnerships or unincorporated bodies formed under the law of that country, territory, state or area as they apply in relation to partnerships or unincorporated bodies formed under the law of the State,

(d) any other bodies in that country, territory, state or area as they apply in relation to such bodies in the State,

(e) literary, dramatic, musical or artistic works, sound recordings, films, typographical arrangement of a published edition or original databases first made available to the public in that country, territory, state or area as they apply in relation to such works first made available to the public in the State, or

(f) broadcasts made from or cable programmes sent from that country, territory, state or area as they apply in relation to broadcasts made from or cable programmes sent from the State.

(2) An order made under this section may make provision for all or any of the matters referred to insubsection (1) and may-

(a) apply any provision of this Part subject to such exceptions and modifications as are specified in the order, and

(b) direct that any provisions of this Part apply either generally or in relation to such classes of works, or other classes of case, as are specified in the order.

(3) The Government shall not make an order under this section in relation to a country, territory, state or area unless satisfied that provision has been or will be made under the law of that country, territory, state or area, in respect of the class of works to which the order relates, giving adequate protection to the owners of copyright under this Part.

(4) The Government may by order revoke or amend any order made under this section, including an order under this subsection"."

Amendment agreed to.

I move amendment No. 113:

In page 103, before section 179, to insert the following new section:

179.(1) Where the protection of Irish copyright law has been extended to a country, territory, state or area under the provisions of section 180, and it appears to the Government that Irish works or one or more classes of those works are not adequately protected in that country, territory, state or area, the Government may by order restrict the rights conferred by this Part in relation to works of authors connected with that country, territory, state or area.

(2) In an order made under subsection (1), the Government shall designate the country, territory, state or area concerned and provide that, for the purposes specified in that order, a work shall not qualify for copyright protection after the date specified in the order where that work is made at a time when the author is-

(a) a citizen or subject of that country, territory, state or area (who is not at the same time domiciled or ordinarily resident in the State),

(b) a body incorporated under the law of that country, territory, state or area,

(c) a partnership or unincorporated body formed under the law of that country, territory, state or area, or

(d) any other body of that country, territory, state or area,

and the order may make such provision for all the purposes of this Part or for such purposes as are specified in that order, and either generally or in relation to such class or classes of cases as are specified in that order, having regard to the nature and extent of the deficiency of protection referred to insubsection (1).

(3) In this section 'Irish works' means works of which the author was at the material time within the meaning of section 175”.”

I wish to seek clarification. Amendment No. 111 inserted a whole new section, which will become section 179. Amendment No. 112 is inserting another new section. Will that become section 180 when the Bill is rewritten?

We will have to insert a new section on page 103, before section 179, between lines 2 and 3. We have to look at the numbering of sections in the context of these changes.

Will amendments Nos. 111, 112 and 113 together create a whole new section 179? It is funny that it says "before section 179" and "acceptance of this amendment involves the deletion of section 179 of the Bill". I assume that is the old section.

We must work with the text we have. Some sections——

I understand, it is inserted before section 179 and then what follows is renumbered.

Correct. There will be some changes in the numbering for the next Stage.

That is the first section on which there were three amendments. Anyway, that is agreed.

Amendment agreed to.
Section 179 deleted.
SECTION 180.

Amendment No. 114 is in the name of the Minister. Amendment No. 115 is an alternative. Therefore, amendments Nos. 114 and 115 may be discussed together by agreement.

I move amendment No. 114:

In page 103, line 44, and in page 104, lines 1 to 7, to delete subsection (4) and substitute the following:

"(4) Government copyright in a work shall expire 50 years from the end of the calendar year in which the work was made.".

During the debate in the Seanad, Senators argued that there was no justification for a period of copyright protection of 125 years to be held by the Government. I have given further consideration to this matter and can find no EU or international requirement for such a lengthy period of protection. I consulted other Departments, suggesting that the term of Government copyright be reduced to that contained in Article 12 of the TRIPs Agreement, that is, 50 years, and I received no objections to that suggestion. Accordingly, I am proposing this amendment to reduce the term of protection of Government copyright to 50 years.

Maybe Deputy Rabbitte should move his amendment.

No. We are discussing amendments Nos. 114 and 115 together but the Deputy can move it only when we reach it. Unfortunately there is a note before me which indicates that I may have to make a ruling which the Deputy will not like. He may discuss it now anyway.

As I understand it, my amendment has the same meaning as the Minister's amendment. This is about Government copyright and subsection (3) states——

For the purposes of clarification, my note states that if amendment No. 114 is agreed to, amendment No. 115 cannot be moved. That is the normal procedure.

I think it is because it has the same import.

If amendment No. 114 is agreed to, there is no need for amendment No. 115.

Exactly.

I could not see why Government copyright should expire in the manner prescribed in the first seven lines of page 104 of the Bill. I do not know why that should be there in the first instance. My amendment would deal with that situation by simply stating that Government copyright "shall expire in like manner as other copyright." I thought that had a certain neatness about it. The Minister's amendment, however, is specific in stating that it "shall expire 50 years from the end of the calendar year in which the work was made." Presumably in 2050 the great work which we are making here will have expired although I would not bet on it. I am happy enough with the Minister's amendment.

One of the other interesting features about that is how long is the life of a Government. Is it one Government or is it Government in its totality? In regard to ordinary copyright, it would be life plus 70 years. I appreciate the Deputy's comments. I think he is accepting my approach.

Amendment agreed to.
Amendment No. 115 not moved.
Question proposed: "That section 180, as amended, stand part of the Bill."

Reference was made to this on Second Stage. Deputy Rabbitte, when he was Minister of State, indicated that there would be a relaxation of Government copyright so that Government documents would be more available to the wider public. I thought that was the Government's view. Perhaps this relates to another section. I know my party has tabled amendments to section 181, but on the general principle we should resist strengthening copyright on Government publications to the point where people's access to it becomes in any way curtailed. I do not subscribe to the view that a Government must be a patsy and should not protect its work, but we should always ensure that something which is prepared and published by Government, whether it be an Act, a report or whatever, would be openly available for people to peruse, copy or use for the purposes of writing or studying.

The Minister of State has shortened the duration of Government copyright but he has not done away with copyright. As we move through these sections, I hope he will assure us about these matters. In all these sections there appears to be a strengthening of copyright for Government publications rather than a relaxation of it, which is what Deputy Rabbitte, when he was Minister of State, indicated he favoured.

I agree with Deputy Owen on this matter. As she rightly pointed out, both she and Deputy Rabbitte, when in Government, waived rights on Acts and statutory instruments. There are other provisions regarding the booklets, guidebooks etc. which are made as part of the work of the Oireachtas and, therefore, there are areas which we need to think about. The Attorney General's advice is that we should designate copyright in these areas, but I think the decision to waive the rights was a good one and I share that view. We will be dealing with this when we come to the next section, but that is my position on it.

The Minister of State, Deputy Kitt, will have been aware of alarming incidents occurring in recent weeks on the Internet, where people's names and other titles have been used without permission. There have even been reports of the Taoiseach's name being used. This is appalling. If reports are to be believed, such names were linked to Internet sites of dubious content to say the least. Is there any way this can be curtailed or prevented under copyright legislation when it is impending on the name of the Taoiseach? It is probable that the titles Taoiseach or Tánaiste could also be used in such a way unless the Government, perhaps in consultation with other Heads of State or Government, can find some way of preventing this appalling practice from occurring. I do not want to see the names of Deputies Rabbitte or Owen or the Chairman, or anybody else's name linked to these Internet sites.

Or, indeed, your own name.

The use of the titles Taoiseach and Tánaiste is important. This is linked to Government and Oireachtas copyright.

Obviously this is a topical issue about which all Members of the Oireachtas will be concerned. It is not a copyright issue, as such, and it is not one which we will deal with here. It relates to domain names and it is difficult to control. I understand that the e-commerce Bill will try to deal with the operation of the domain registration system in Ireland. As I stated earlier we can do so much in controlling our own systems in this area, but some of these operations are outside the State and in some cases they are in no state, they are literally on the wires.

The Department of Justice, Equality and Law Reform would be involved in this, as, indeed, would the EU. The Deputy mentioned Heads of State and that was a useful suggestion. Ultimately this issue might have to be dealt with at that level. It has to do with e-commerce and trademarks and certainly we are moving out of the copyright area, but it is important that the Deputy raised it in the context of Oireachtas copyright. It is a matter on which the Government shares the Deputy's concerns.

Question put and agreed to.
SECTION 181.

Amendments Nos. 116a and 121 are related to amendment No. 116 and all my be discussed together by agreement.

I move amendment No. 116:

In page 104, between lines 21 and 22, to insert the following subsection:

"(3) Permission to copy or publish an accurate text of any enactment or Bill or part thereof is hereby granted to any person subject only to such conditions as may be imposed for stated reasons in a particular case by resolution of both Houses of the Oireachtas"."

This relates to enactments. If a Bill is enacted by the Houses of the Oireachtas, citizens should have free access to such legislation. It may not be possible for people to purchase the original Bill but they may be able to copy and distribute the law of the land. Citizens would then be better informed. People would also be able to download such proposed enactments from the Internet and distribute and discuss them to allow for more freedom.

That is the case in a nutshell. It is absolutely clear in the legislation that nothing we do makes it more difficult for the citizen to access any instrument enacted by the Oireachtas except in so far as we, as Members, regulate them by resolution. One can envisage any number of scenarios where a citizen might want to make a case or a criticism or a student might want to publish part of an Act. As long as it is accurately reproduced it should only be subject to such regulations and conditions as the Oireachtas sets down.

I am somewhat surprised the Minister of State did not table an amendment to this section. Obviously, he intends to accept one or all of these amendments or redraft them. It is absolutely crucial that this provision is made rather than the Minister of State stating that it is understood. I am afraid he will reply that it is not an infringement if somebody just accurately copies text from a Bill when it is published. Provision should be made in the legislation. Amendment No. 116 provides that it shall not be an infringement of copyright to copy an enactment. I copy enactments and take them home as part of my work or if I am preparing for a discussion with a number of people. I do not want to find myself on the receiving end of a summons for breach of copyright. We need to copy many sections of this legislation in order to have proper, meaningful discussions on Committee and Report Stages. It is absolutely essential that the intent of the amendments is properly understood in the legislation or that the Minister of State agrees to take them on board now or on Report Stage.

This is an important point and, as the committee will be aware, we are allocating copyright to the Oireachtas following our discussion in the Seanad. The reason I do not favour these amendments is that the matter is better addressed through more flexible provisions contained in section 184(2). The Attorney General has advised that it is highly desirable from a legal viewpoint that the copyright on legislative material should be clearly assigned and following amendments made in the Seanad it will be assigned to the Houses of the Oireachtas. Section 184(2) further provides that the functions of the Houses as owners of copyright shall be exercisable on their behalf by the Ceann Comhairle. The Ceann Comhairle would clearly exercise this brief on the advice of the Houses, formulating the matter which would most appropriately be determined by them.

Following the debate on the matter in the Seanad and noting the burdens of these amendments, I have little doubt that the Houses will exercise their discretion as owners of copyright on legislative materials in favour of the broadest degree of public accessibility. I recall that the previous Government waived restrictions on royalties in the copying of Acts of the Oireachtas. I have no problem with the intent of these amendments. Surely it could be achieved by dealing with it in the Oireachtas. There is nothing to prevent the Oireachtas from doing what Members want. Whereas the situation is clear regarding Acts, statutory instruments and the role of Members in copying etc., is it not best that the Oireachtas deals with these matters?

How would that operate? Is the Minister of State saying that a committee of the House, such as Committee on Procedure and Privileges, would have to devise a set of rules and regulations when this Bill is enacted?

Following the enactment of this legislation, if this committee prepared a report it would have to outline what could be copied and distributed through a set of rules or regulations.

Or a resolution of the Houses of the Oireachtas.

Not according to section 184(2). You, as chairman, would have to inform the Ceann Comhairle that the committee has produced a report on supermarkets, for example, and ask his permission not to have it copyrighted. That is very impractical.

The Deputy is seriously over-concerned about this. The Oireachtas is quite sensible in the way it administers its functions. It would be probably easier to deal with this by assigning copyright to the Government. It would be clear how it would deal with this given its back-up and facilities. Copyright would be assigned to the Oireachtas and it would decide what to do with it. My understanding is that the Members of the day can agree to waiver that right. It is a better way of dealing with this.

The Minister of State has not yet informed me in practical terms what section 184(2) means. I interpret it to mean that, when the legislation is passed, the Committee on Procedure and Privileges of the Houses would have to meet and agree that which would be assigned Oireachtas copyright. The Ceann Comhairle will read a motion saying that certain documents are copyrighted by the Oireachtas. However, the Government may not want something to be made available and could vote it down.

There was a very good debate on this in the Seanad. Senator Ryan and others were very strong in their view that copyright should be assigned to the Oireachtas, and I accept that. Members present have more experience in terms of committees, procedures and privileges, and this is something new with which the Oireachtas will have to deal. However, I do not think we should create problems where they do not exist. We can deal with the matter. It is giving power to the Oireachtas through the Ceann Comhairle. Clearly, there will be a need for us to put the mechanism in place, but the Deputy and all parties will be part of that process. In response to a very good debate in the Seanad we are assigning copyright to the Oireachtas rather than the Government. From a management point of view it would have been easier to assign it to the Government, I presume, but I cannot see why the Oireachtas would be unable to deal with it.

I read the debate in the Seanad and appreciate what the Minister has done and the movement which has taken place in this regard. I know the intention is to make things easier and freer and so forth. Transferring copyright from the Government to the Oireachtas is a substantial move. However, there are a number of issues. The ownership of copyright is important so that nobody else can claim ownership and perhaps prevent people from using the work. Under this proposal the Oireachtas will have ownership of copyright. I know the Tánaiste has a strong view of what she terms unnecessary bureaucracy and we had a number of discussions in that regard. The intention is to free up availability of enactments so citizens can gain access to them without having to go through certain bureaucracy. Would the amendments proposed not short-circuit the unnecessary bureaucracy of having to establish a special Oireachtas committee with new rules, with people perhaps having to apply for copyright? The Oireachtas would have ownership, but citizens and ourselves could copy Bills and Acts and use and discuss them with constituents and others.

Surely this is what we should be aiming for. Perhaps the Oireachtas will do this in any event, but at the stroke of a pen the Minister could short-circuit this, prevent the imposition of another load on Members of the Oireachtas and its committees and avoid additional costs while achieving the same end. There are good arguments for accepting at least some of theseamendments. The Oireachtas will still have ownership of copyright and a function, but it would not be unnecessarily lumbered with all this extra work.

One of my concerns is that by accepting the amendments we might make the system more restrictive. I share the concerns of Members, but I am trying to free up the system by leaving it to Members to deal with the issue. I hope future Members will have the same attitude as the current and previous Governments to the issue of wavering. We may need to be careful about certain aspects of the work of the Oireachtas. I know the Deputy referred to an enactment, however, my feeling is that it is best to leave it with the Oireachtas, through the Ceann Comhairle, and have faith in it. We should have trust and faith in the Oireachtas out of respect for the parliamentary system.

We are dealing with amendment No. 116, but sections 183 and 184 are relevant. I presume it is clear that section 184(2) relates to a Bill. Section 183 seems to deal with a Bill. I do not know why a distinction is drawn in subsections (1) and (2) of section 183 between a Private Member's Bill and a Bill as in both cases it says copyright is vested in the Oireachtas. Subsection (1) says "copyright in a Bill, other than a Private Member's Bill, vests in the Houses of the Oireachtas" while subsection (2) says "copyright in a Private Member's Bill vests in the Houses of the Oireachtas".

I think it is tautology.

Subsection (1) implies a Private Member's Bill does not have copyright vested in the Houses of the Oireachtas.

The Deputy is referring to the word "work".

I presume the word "work" includes a Bill.

Yes, it does.

I am merely asking why section 183(1) is phrased in a way which would seem to exclude a Private Member's Bill while subsection (2) expressly includes a Private Member's Bill.

I appreciate what Deputy Rabbitte said regarding the relationship, but we are dealing with copyright in Acts in section 181. I would be happy to tease out section 183(1) and (2) when we get that far.

I thought we were dealing with amendment No. 121 to section 183.

We are dealing with amendment No. 121 to section 183. However, Deputy Rabbitte is questioning section 183 and subsections (1) and (2).

I must leave at 6 o'clock as I have another commitment, but I will try to deal with this beforehand. There was a view that copyright of a Private Member's Bill should be vested in the individual. Both references have been included in the interests of absolute clarity.

We do not want to force a vote on it at this time. Would it be better if both sides had some time to ponder this and finish dealing with it the next time we meet?

I propose we adjourn as agreed until Tuesday, 4 April at 3.30 p.m. I remind Members that we have agreed to meet on Wednesday, 5 April at 4 p.m.

The Select Committee adjourned at 6 p.m. until 3.30 p.m. on Tuesday, 4 April 2000.