No further amendments have been received since yesterday's meeting and we resume on section 234.
Vol. 3 No. 15
No further amendments have been received since yesterday's meeting and we resume on section 234.
This is a convoluted section with much in it. Perhaps the Minister of State will give us a brief overview of it.
On an earlier section, I sought to amend the amount of time in which the programme could be maintained. This section states it shall be destroyed within six months but under UK and other legislation, 28 days is the standard time in which the copy can be kept. Perhaps the Minister has had a chance to consider why he has included this length of time. It seems unnecessary and there is always a risk that the longer a copy, which has been exempted, is kept, the greater the risk it might fall into the wrong hands or be used in the wrong way.
Section 234 relates to a case where somebody has to make a recording. I remember Deputy Owen talking about the reference to recording "by means of his or her facilities". Many of these issues are parallel to what we were talking about in copyright. We have not completed our examination of that aspect.
We will come back to it.
The section refers to "by means of his or her facilities". Stations, such as TV3 and others, may use outside facilities and not their own to do much of their work. There is a need to be careful here. The Minister of State said he would examine the matter. Has he come to any conclusions regarding the six months provision, which appears in the earlier part of the Bill?
We have not come to any conclusions on that matter. Complex legal issues are involved. Given that it is parallel with what we discussed earlier and with what we will be considering over the next few sections, we have not come to a definite position. However, I indicated that we would deal with many of these issues as best we can prior to Report Stage.
Will both these issues be considered again on Report Stage?
A request has been made that TG4 would be considered by the Minister of State as a designated body. Section 237(3) states: "In this section "designated body" means a body designated for the purposes ofsection 99.”. TG4 should be included under this provision, and under similar provisions in section 238.
I agree with that proposal. Section 237 refers to designated bodies in relation to modification works for disabled people. This is similar to section 99, where we discussed the Rehab Group, the National Council for the Blind of Ireland, etc. Section 238 deals with RTE, TG4 and other such bodies. I accept the Deputy's point.
We will deal later with the role of the controller. This section deals with the power of the controller to consent on behalf the performer. Section 239(1) states:
. . . the Controller may by order, on the application of a person wishing to make a copy of a recording of a performance, consent to the making of the copy in a case where the identity or location of the person entitled to the reproduction right cannot be ascertained by reasonable enquiry.
This places another onus on the controller, as does subsection (2). Not enough thought has been given to the implications of the additional powers and responsibilities to be conferred on the controller. These will impose extra work on him, despite the fact that, with no disrespect to the person in the job, the system is not working, not even under the limited provisions of the 1963 Act and the minor amendment set out in the 1998 Act.
It is impossible to speculate how this office will operate when this monster of a Bill becomes law. Almost all the provisions regarding querying, challenging, examining and testing will be done through the office of the controller. Under section 239(1) the controller may consent to the making of a copy where "the identity or location of the person entitled to the reproduction right cannot be ascertained by reasonable enquiry.". What is meant by the term "reasonable enquiry"? Whose word will the controller take that the person cannot be found? Will he have to go, to quote another famous saying, "up and down every tree" in the land to ascertain the identity or location of the person entitled to the reproduction right? The Minister is stiring up a huge problem in terms of the operation of this legislation.
I have also raised this point. Yesterday the Minister of State indicated that at the end of this process he will encourage his officials to present him with a cogent commentary on the present position. The members of the committee need a note on the assessment of the capacity of the controller and his office as now constituted to deal with what the Minister of State described on another occasion as a "huge imposition" on him, as prescribed by the Bill. I do not wish to rehearse the arguments, but there are very significant implications regarding the capacity of the existing office to discharge the new functions and responsibilities set out in the Bill. We need to assess what is involved before Report Stage.
Deputy Rabbitte's suggestion of a note might be useful to the committee.
This issue needs to be addressed as a priority, as we agreed yesterday. We will do all we can to set out our position prior to Report Stage. We will deal with the controller under section 344. Section 239 deals with circumstances in which the consent of the performer is not available and where, if the performer cannot be found, a representative must be. Section 345 specifies the notice required to satisfy the search for the owner of performer's rights for consent purposes.
When we have completed Committee Stage I will do my best to notify the committee of the position on a number of issues. I want to bring all the points together and we will do that as best we can. The committee has worked hard on this Bill. We can debate the role of the controller at length when we come to deal with section 344.
That is reasonable. Perhaps the controller has been following the debate on this legislation and has worked out what his extra responsibilities will be. Perhaps the Minister of State might ask him to set out what he considers will be his extra responsibilities.
I have been advised by my officials that he has not indicated his views in detail. We need to ask him. As a committee we cannot deal with the issue of resources, but as the Minister of State representing the Government, I will deal with it. In the meantime I want us to proceed with our task and deal with the position of the controller when we reach section 344.
On that point, by the time you prepare the note for the committee, the Bill will have moved on to Report Stage. I suggest that you communicate directly with Deputy Rabbitte, Deputy Owen and the relevant spokespersons to outline your views on that resourcing issue and how that will work.
Earlier we discussed a "protection-defeating device". I know it is defined in the Bill as a device which could be used to "circumvent, without authority, any rights protection measure". Section 240 is about performers and performances, and it probably refers to somebody using a video camera or such recording device.
This arose on amendment No. 11.
It did. We did not want to table amendments again, but I assume it relates to where a person would make an illicit recording. If a person "has in his or her possession, custody or control a protection-defeating device", would the Minister of State give an example of what exactly that might be in this instance?
I think that was in the area of decoding. This section deals with civil remedies. We are talking about the question of bootlegging machines and video warehouses. In that case it might be about counterfeit smart cards and high-tech devices. There are the obvious cases where there are recording devices, which we mentioned yesterday, and where the Garda raid warehouses, etc. but this has to do with the high-tech area.
Earlier we discussed the phrase, "that there are reasonable grounds for believing that there are being hawked" and I wondered whether it was written in the correct tense. The case was made to us that one would need to be able to move in when it is clear what is happening. If somebody is walking around carrying a great heap of illegal material in a suitcase or a bag or wheeling it along in a trailer, one cannot do anything about it because the Bill states "that there are reasonable grounds for believing that there are being hawked, carried about or marketed". The Minister of State may have views on it. It should be clear that somebody could get an injunction to stop the person before he or she sets up a stall and was in the act of doing it because by the time somebody got an injunction, the person would have sold or hawked all the articles.
Looking back over the earlier debate we had on this issue, we felt that "carried about or marketed" would account for that situation. As I recall, we felt that the word "are" in the phrase "believing that there are being hawked" means "in the act of". We are not interested in criminalising individuals. The target here is commercial use in this area and, therefore, one must be as precise as possible. Having said that, as far as I recall, we did say that we would examine this.
There are 15 markets in towns and villages in Ireland on any given Saturday. If a company or somebody who owns a copyright has inside information that a great number of video tapes have been made and somebody will flood the market with them, it would be difficult to get a District Court to "authorise by order a member of the Garda Síochána to seize without warrant" because the words "carried about" are subjective and it would be difficult to apply. I could be walking around carrying something and I might not have the slightest intention on that day of hawking it. One could make a pretty good case to a Garda or judge that one's civil rights are being abused because one happened to be carrying a suitcase full of tapes. One might be taking them home to destroy or recycle them. The person might be an honourable citizen who has decided to go into the recycling market. A judge might difficulty with the concept of carrying about.
I have heard of carrying on but carrying about seems an odd phrase. Maybe there is a need for legal advice on that.
In many ways we are repeating ourselves. From a legal point of view, it is much easier to deal with a situation where somebody is in the course of committing an offence and it is difficult to deal with a situation where there is an intention to commit an offence. What we said to the Deputy the last time was that we would ask the Attorney General's office to reconsider the text because she was concerned about the term "hawked". At the time the Deputy said that she objected to the use of this term without a definition and, on the matter of the employment of the present tense, that there was too onerous a burden on the plaintiff. She thought that the wording taken from the 1963 Act is not appropriate to modern times. We told her that we would check this with the Attorney General's office and that is what we are doing.
I have a slightly different view on this in the sense that I think this term "hawked" is the language of the street and, unlike many terms in this Bill, it is understood. It would make sense to many people to state that where there are reasonable grounds for believing that something is being hawked or marketed, the court may authorise a member of the Garda Síochána to seize the goods, etc.
However, I do not know what "carried about" means. For example, if goods that have been bootlegged are being transported in a Hiace van from one point to another, are they being carried about or does this refer to a woman from Moore Street wheeling her pram or stand up Henry Street? Is that woman carrying about?
With the purpose of hawking.
That is not to imply that any woman from Moore Street would do such a thing. What does the term "carried about" mean? Everyone understands the meaning of the word "hawking" but I am not sure about the meaning of the phrase "carried about".
Is the term "carried about" linked to the phrase "articles specifically designed or adapted for making recordings"? Is it specifically linked to the term "hawking"? Deputy Owen clarified the matter a great deal in asking whether the term carrying something about is linked to the activity of hawking. Is it an intermediate activity which precedes hawking or the intention to hawk?
At our previous meeting, like Deputy Rabbitte and others, I indicated my understanding of the term "hawking". The term "carried about" refers to articles which might be transported in a cart or a Hiace van, for example. The important thing here is the nature of what is being carried. A person could be carrying CDs or videos but they might also be carrying equipment for making illegal recordings or protection-defeating devices. We gave a commitment to examine this matter but if there is a need to use the term "carried about" in order to deal with infringers, then it should be retained.
Has the Minister of State not provided elsewhere for goods suspected of being stolen, being transported from one location to another, etc.? I understand the necessity to use the term "carried about" where it is believed that such goods are being hawked or, in other words, sold. I presume the term "marketed" in the context of this section means advertised for sale. If memory serves, the Trade Marks Act provides for the Garda to raid premises where it is believed stolen goods may be hoarded in preparation for transport or whatever. Is the phrase "carried about" required in this section? It appears that its use will lead to a belt and braces approach. "Hawked" means to put on display to sell and "marketed" means advertised for sale. In that context, why include the term "carried about"? Could a person be asked to empty their trouser pockets on the corner of O'Connell Street and Henry Street if they were suspected of carrying something about?
Marketing has a wider definition than something being advertised. It also means bringing something to market and this could mean something outside——
My understanding of section 241(1) is that it deals with situations where it is believed that a lot of bootleg or contraband articles are on their way to a market or street corner to be sold. In my opinion the subsection could be amended to read "Without prejudice to section 242 where the owner of the rights in a recording of a performance conferred by this Part applies to the District Court, it may, where satisfied that there are reasonable grounds for believing that there are being hawked, or marketed or carried about for the purposes of hawking or marketing the following items. . . ".
Section 241(1) (a), (b) and (c), respectively, make specific reference to illicit recordings, articles specifically designed or adapted for making recordings and protection-defeating devices and I suspect that the term “carried about” is used to qualify paragraphs (b) and (c). Obviously a person would not be hawking articles specifically designed or adapted for making recordings; they would be transporting them to a location to make such recordings. The different terms used in the section are meant to qualify paragraphs (a) or (b) or (c) or (a) and (b) together or (b) and (c) together. The terms “marketed” or “hawked” refer to the selling of the illicit recordings of a performance while the term “carried about” referred to articles specifically designed or adapted for making recordings or protection-defeating devices. That is what is giving rise to all this confusion. The term “carried about” should not be used to qualify the terms “hawked” or “marketed”; it should only be used to qualify the other matters with which this section deals. Perhaps I am wrong, but I believe the term “carried about” has given rise to confusion.
Perhaps it would be better to include some letter of intention rather than the term "carried about". It is clear that the term "carried about" is being used in order to give the Garda Síochána the opportunity to arrest a person who may not be specifically marketing or hawking a device or an illicit copy but who is about the business of doing so. I would have thought the word "marketing" would have covered a person's carrying something about. It is often assumed that marketing merely involves advertising or packaging a product but it actually applies, under its proper definition, the process by which a product is brought to market, both before and after it has been produced. The term "carried about" may be unnecessary because one could argue that someone carrying either the device or the illicit copy is actually marketing it while carrying it in their pocket to a particular location.
I disagree. In my opinion it is important to include the term "carried about" or a reference to the act implied by those words because the section implies that if a person is transporting or carrying about with them protection-defeating devices they have in mind only one purpose, namely, to defeat protection. Therefore, it can be assumed that the devices in their possession are going to be used for an illegal purpose. Perhaps the section should state that the District Court may authorise a garda to seize goods where he has "reasonable grounds for believing that they are being hawked or marketed or that a person is in possession of" the items listed in paragraphs (b) and (c) for the purposes of making an illegal recording.
I am concerned about the use of the term "carried about" because a good solicitor or barrister will find ways to undermine the intention behind the section as a result of its being used. A person's being in possession of articles specifically designed or adapted for making recordings for illegal purposes would be adequate for a judge to order their seizure. The person in question could then go before the District Court to assert either that they are not involved in the recording business and do not need to have such items in their possession or that they work for a recording company and are obliged to carry them about with them as part of their job. The Minister of State must be careful that he does not make it difficult for the District Court to operate this section which is designed to prevent bootlegging or the use of protection-defeating devices.
I will review this matter in the light of our discussion. It could be argued that the term "hawked" could refer to protection-defeating devices or forged smart cards.
Yes, such items could be hawked.
We will consult the parliamentary draftsman on this matter and try to come up with a clearer wording. Deputy Rabbitte referred to other parts of the Bill which deal with offences. I can inform him that we will be dealing with infringement under Chapter 6.
I move amendment No. 140:
In page 132, between lines 9 and 10, to insert the following subsection:
"(12) Where there has been an exercise of the right to seize and detain, conferred bysubsection (1), the court may, on the application of a person aggrieved by it, award damages against a person who exercises that right as it considers just, on being satisfied that-
(a) no infringement of any right conferred by this Part has been established, and
(b) the grounds that the person has for such seizure were malicious.”.
I should inform Deputy Rabbitte that similar to part of our discussion at the last meeting I said that I would withdraw my amendment with a view to reconsidering the Deputy's alternative wording. He believed at the time that there was a requirement to show that there was malice on the part of the rights holder and it was too high a burden. I will do the same as I did in regard to amendment No. 90.
I move amendment No. 1 to amendment No. 140:
In the last line of paragraph (b), to delete “malicious” and substitute “insufficient to justify seizure”.
I do not wish to prolong the debate. To prove that grounds for seizure were malicious is virtually impossible. It requires a high degree of proof and, while I am not wedded to my own wording as being perfect, the concept behind it is more feasible. If the Minister of State is prepared to come back to us on Report Stage with wording that diminishes the high level of proof that he requires in section 241(b) I will accept that.
I have withdrawn my amendment with a view to coming back on Report Stage similar to my commitment to review amendment No. 90. I will also review this amendment in light of Deputy Rabbitte's comments.
I wish to raise two issues. The section gives a great deal of power to the rights owner. Section 242(6) states that "a person exercising the right to seize and detain conferred bysubsection (1) may not seize anything in the possession, custody or control of a person at his or her permanent or regular place of business, trade or profession and may not use any force”. Is an individual’s home sacrosanct? It is mentioned explicitly in the legislation.
Section 242(7) states that "a person exercising the right to seize and detain conferred bysubsection (1) may make an inventory”. I only noticed this a little earlier and I regret not tabling an amendment to the effect of “shall make an inventory”. Could such a change be made on Report Stage? It does not seem to make much sense otherwise. Will the Minister of State explain the reason for the use of the word “may” rather than “shall”?
I draw the Minister of State's attention to an issue which came up frequently when I was Minister for Justice. A great deal of trouble was created for the Garda when, for example, members chased a stolen car or a truck containing millions of pounds worth of computer parts through the countryside. They often moved from one District Court area to another during the chase but they would only have had a warrant to seize for one District Court area and when they travelled into another area it was no longer valid. I introduced amending legislation to cover such eventualities so that a District Court warrant was valid in all areas. I am worried in regard to this section because of the activities that might take place.
Section 242(1) gives power to the rights owner, if he or she feels there is no time to apply to the court, to seize "where the recording, article or device is being hawked, carried about or marketed". For example, if I, as a rights owner, attend the street market in Ballinasloe or Kildare and hear that somebody is on the way there who is carrying about a large consignment of Westlife bootleg tapes to which I own the copyright and I want to prevent their sale because it will cause a great deal of difficulty for my business, can I intercept that car on the way and seize the tapes which are being carried about? If something is "being hawked", can it only be seized when the stall has been set up?
However, a difficulty arises in section 242(4) which states that "Before any illicit recordings, articles or devices are seized under this section notice of the time and place of the proposed seizure shall be given to a member of the Garda Síochána in the District Court area in which the recordings, articles or devices are to be seized". I am making a slightly facetious argument but I am trying to highlight how utterly impractical this section may be.
If I follow the hawker to Monasterevin, having informed a garda in the Dublin District Court area that I am trying prevent the goods from being carried about because I have reason to believe that they will be hawked in Kildare, I will be in Kildare District Court area and will have to inform a garda there and ask whether I can catch these people before they reach Kildare. If the hawker is aware that he is being chased he can quickly cross the Kildare border into Carlow and another District Court area knowing full well that the rights owner will not be able to find a garda there. Then he slips back into Kildare, erects his stall and sells the bootleg tapes while the poor, unfortunate rights owner is still chasing around trying to find gardaí in various District Court areas where he thinks he will be able to stop the hawker's car.
Will the Minister of State examine this issue? Will he speak to officials in the Department of Justice, Equality and Law Reform and ask them what provisions were made in regard to Garda warrants for search and seizure? We changed the law so that any District Court judge was able to give permission to the Garda. Does the Minister of State know where one District Court area ends and the next begins?
No, but the Minister for Justice, Equality and Law Reform does.
I bet he does not. Even if one is the Minister for Justice, Equality and Law Reform, when one goes to the midlands and other parts of the country, it is interesting to see how District Court areas are defined..
Especially if one is caught speeding.
A particular judge is well known for handing warrants and if one was in court before her, one would know where an area starts and ends. It would be worthwhile to prevent bootlegging here because rightsowners have suffered from this. We probably all know people who are guilty of buying bootleg tapes. This is an important section which is not worth the paper it is written on unless it is operable and can be enforced. I ask the Minister to take on board my limited experience of how this has not worked in the past.
The Deputy has a good deal of experience, given her knowledge of warrants and so on.
I am worn out from making my way to Kildare.
I thank the Deputy for sharing her experience as Minister for Justice with us. I will ask the Attorney General to review the area of District Courts in the context of what the Deputy said. Deputy Stanton asked about home, but we are not talking about that in this instance. Deputy Stanton asked about the word "may" in the context of an inventory. The word "may" rather than "shall" is included so one would have an inventory if necessary. I will not go into too much detail because this has been discussed previously. I give a commitment that I will ask the Attorney General to look at the issues of carried about and District Courts.
A person's permanent or regular place of business, trade or profession means that if someone is selling these items from a shop, the rights owner would have to go to the District Court. It is only when it is impractical——
Street trading and so on.
A person could have a permanent or regular place on the street.
Subsection (5) deals with a person exercising the right to seize who may enter premises to which members of the public have access. Would that be someone's van?
If they were selling something from it.
We are back to the carrying about. One might be intercepting them, not at the hawking or marketing point but at the carrying about point, which would be their van. They would not actually be selling.
I take note of what the Deputy said. I could start a debate on the strength of this. The purpose of this is more a warning shot to street traders. We will do our best to deal with the issues raised.
On subsection (11), I assume the Minister for Justice, Equality and Law Reform will make the rules of the District Court. It is not normal for a Minister for Enterprise, Trade and Employment to make rules of court.
The Minister for Justice, Equality and Law Reform will do so.
The Minister of State will have to give him sound advice.
Section 243(3)(b) is a new subsection which I have not seen before. It states: “provides information, or offers or performs any service intended to enable or assist persons to circumvent rights protection measures”.
We are now into the area of criminal offences, dealing with infringements and the making of illicit copies. We have gone through this before in relation to copyright but if any Deputy wants to ask questions, that is fine.
I may have missed the previous discussion. Were some of these new offences introduced in the 1988 Act?
Not for performers. They were penalties in relation to copyright.
Can the Minister give me any instances of someone being fined £100,000 or receiving a prison sentence up to five years? As this is only being introduced, perhaps the Minister could tell me whether these penalties applied to anyone under copyright in the 1998 Act? Is anyone languishing in jail at the moment?
I am not aware of anyone, perhaps when the comprehensive Bill is in place. I will check that information for the Deputy.
Section 245(1)(a) states “that an offence under section 243 has been, or is about to be, committed in, on or at any premises or place”. Is this a new provision? I think we may have discussed it before.
It is parallel to what we dealt with previously. The purpose of the section is to provide for search and seizure where an infringement of a criminal nature is being or is likely to be committed, in addition to the seizure of physical objects intended to provide the option to make an inventory or other descriptive listing of any illicit recordings and protection-defeating devices which may be produced in court as evidence in future criminal proceedings. This arises from the advancement of technology, which we dealt with before, to the extent where some infringements are almost intangible. It mirrors what we have done before.
Subsection (2) states that a warrant issued under this section may authorise persons, including the rightsowner or designated representative thereof, to accompany or assist any member of the Garda. Is that normal? There could be a certain amount of danger involved. Is this a new section which we are obliged to include under WIPO or the Berne Convention?
This refers to the possible need of gardaí for technological expertise which is not available to them.
It is someone designated by the rightsowner.
Representatives of the rightsowner could be involved.
Is that unusual? If I ring the Garda and say there is a burglar in the house next door, I would not like to accompany them to identify the person as the one I saw climbing over my garage. I assume this provision will be used sparingly because it could endanger someone if the goods seized were worth a large amount of money. Criminal elements could be involved.
I agree with the Deputy. However, I stress this subsection states "may authorise persons".
It is the warrant itself - the court essentially nominates the person.
I move amendment No. 141:
In page 137, subsection (1), line 9, to delete "performers' property rights".
We have probably said this before, but I do not want a section to go by without the Minister of State recognising that the issue of the licensing body has arisen again. I wish to impress on him how important it is that he comes back to us with an obligatory registration scheme for licensing bodies, which is what he indicated he would do. That would mean, in turn, the licensing schemes would be covered and it would be understood by everyone that they were properly controlled by the controller or tribunal, whichever it is decided to establish.
The Minister of State accepted my point about the complex situation of one of the groups who spoke to us at one of the oral hearings and its concern that it would not be able to implement any licensing schemes. When one is claims rights, one must own a certain amount of them. The ICLA made the point that it might not qualify to be a licensing body and the Minister of State undertook to examine that to ensure an anomaly did not exist in that regard. He may have tabled an amendment to deal with that. Since this chapter is about licensing schemes and refers to licensing bodies, I remind him again to introduce obligatory registration.
Deputy Owen has interpreted what I said correctly.
This is another responsibility being devolved to the controller - it must be the 68th one at this stage.
We are concerned that the terms of a licensing scheme proposed to be operated by a licensing body should be referred to the controller. We are anxious that there be compulsion. We did not table amendments because we did not want to delay progress and the points have been made already. I am sure the Minister of State will take them on board.
Will the Minister of State give us an overview of this section?
The purpose of section 253 is to allow for further references of licensing schemes to the Controller of Patent Design and Trademarks for adjudication in cases of the same description. It allows persons or organisations having an appropriate interest, including the operator of the scheme, the option to have the controller consider making variations of orders made by him or her on foot of earlier references to a scheme of the same description. Equally, the controller is empowered to confirm his or her original order should he or she deem this appropriate. A corresponding provision exists in the copyright area in section 146.
Section 253(6) states that: "An order undersubsection 5 may be made for such period as the Controller may determine”. Is that completely open-ended?
The controller would decide on the basis of the information before him.
This is where I am utterly confused. There will be a licensing body which will request a licensing scheme and then there will be the granting of a licence in connection with a licensing scheme and the operator of the scheme. Why would anyone go to the trouble of becoming a licensing body under the controller? It is only when one registers with the controller that one must have a licensing scheme. If a copyright owner decides to ignore the controller, as the Bill allows one to do, would he or she ever have to approach him to seek a licensing scheme, or am I missing something? If one does not buy into the system, perhaps one does not need a licensing scheme.
The normal position is that there would be a licensing body, such as IMRO, and the licensing scheme and scale of charges would be agreed. However, I understand the Deputy to mean an individual who might circumvent that.
No. Bodies such as IMRO or PPI do not have to declare themselves to be a licensing body under the controller. It is voluntary, not obligatory. If they decide not to buy into the system of being declared a licensing body by the controller, do they have to approach him or her for a licensing scheme?
The Bill has a definition of licensing body and, if they come under that, they are included. They obviously qualify if they fulfil the requirements of that definition. As regards compulsory registration, I have given my answer on that and I am willing to come back on it.
What is the current position on licensing bodies and schemes and the controller? How many are registered with the controller or are there bodies which are not operating under a licensing scheme or the direction of the controller?
There is no registration scheme at present, but that is why we are trying to deal with this. The Bill I am introducing would have a voluntary scheme, so we are moving from a position where there is no registration at the moment.
The function of the controller will be greatly expanded under the Bill if that is the case, as will the amount of work the controller must do.
If this Bill is enacted and it is not obligatory to register, why would a licensing scheme be needed? If a licensing scheme is something to control the use of material one owns, what is the advantage to it? One tries to control what people can use by making certain materials part of a licensing scheme and a disco, for example, could not then use a certain piece of music. Is a licensing scheme negative from the consumer's point of view or positive from the copyright owner's point of view?
This is fundamental and the Deputy and I agree on the need to protect rights, therefore we start from that basis. The rights owner needs to be protected by the licensing body. That body represents him or her and needs to have a scale of charges, which is what the licence gives - a price list. Clearly it suits the rights holder if there is a structure whereby the needs of rights holders are catered for.
Am I wrong in thinking that when we discussed a scheme earlier it seemed that a rights owner had the right to limit, by having a licensing scheme, the use of some of the material? That was my understanding. I can see that the licensing scheme would declare the charges, but was there not also something to protect the element of the work by applying for a scheme?
I am told that there is a reprographic production and a certification element. Unless one has a licensing scheme one cannot assert one's rights. The Deputy is right in referring to a specific case we dealt with some time ago on reprographic production.
I am looking at section 142——
The purpose was to encourage the setting up of a scheme.
Section 142 states that a licensing scheme means a scheme that specifies the classes of case in which the operator of the scheme or a person operating on his or her behalf is willing to grant copyright licences. That would cover a person's recorded music and the terms, but the section goes on to state that for these purposes "a scheme includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name" and it also states that a licensing scheme relating to works of more than one copyright owner shall not include licences or schemes relating to a single collective work or works. Are we dealing here with licensing schemes for copyright?
This is related to one person and more than one person would be needed to set up a scheme.
We are talking here about performers only.
The operator of a scheme may apply to the controller for a review. Is there any appeal after that? According to this section the controller shall, on application, confirm or vary his order.
All decisions of the controller can be appealed to the courts.
Where does it say that?
It is obviously in another part of the Bill.
Regarding the Minister of State's last comment, is it correct that anyone can ignore the controller's orders and does not have to follow them if they do not want to? They do not have to take note of it.
They can make an appeal.
They can opt out of the scheme if they do not agree with the controller. They can say they own the football, so to speak. Can they opt out?
If one is running a scheme I cannot see that situation arise.
The point we want to reiterate is that the interface of copyright owner and controller is voluntary under this Bill. If someone decides to go into the scheme voluntarily and, having gone through three phases, decides they do not like the controller's order, they can decide where the controller can put his order. They can ignore it and decide not to be registered under the voluntary scheme of registration and they can go their merry way. That is where we must stress where the nonsense of having a voluntary scheme lies. Someone going through the process can decide, at the end of it, to say something rude to the controller and the relationship is terminated. That is no good for the rights owners or those who want to use copyright material. There should be no confusion about rights under this legislation.
If the Minister of State could deal with this matter it would clear up the same issue for other sections.
We did say we are coming back to the controller and we also talked about registration. We also said we would look at the voluntary aspect. We have given a commitment to produce a paper before Report Stage and this will be a major issue in it.
If one is running a scheme one is bound by the terms of the Act. One is tied into this legislation and bound by its terms.
One does not have to get involved in it. If one is running a licensing scheme one starts at the beginning by going to the controller and saying one would like to set up a licensing body. However, one need not bother with that or the scheme. One can act completely arbitrarily, but this could be solved by bringing in registration.
This is very important. We are spending hours on section after section, but it is academic unless we know what the Minister of State plans to do. This has been going on for months but we are wasting our time unless we know what is happening. Perhaps we should adjourn until the Minister of State makes up his mind and tells us whether there will be a voluntary scheme. Let us give him time to settle this issue and then we can say this will be compulsory. Otherwise we are wasting our time.
I gave an assurance that we would deal with this when we reach the section on the controller.
We are talking about the need for a registration system for licensing bodies. We are not talking about the controller, we are talking about what the rights owners will do if they can opt in or out of being a licensed body and, therefore, come under the control of the controller. If the Minister of State is introducing obligatory registration of all licensing bodies he should say so and we will be able to agree because we know all of this will be changed before Report Stage.
It would be helpful if the Minister of State indicated the options available to him and the preferred option.
We were very positive with regard to voluntary and compulsory registration and we outlined our position. I accept the Deputies' difficulties with this because of the length of the Bill and the number of commitments we have given. I have stopped short of absolute clarity because all of these issues are being examined as we speak. I will return to this issue but the definitive position will be given before Report Stage. We cannot go beyond that.
If the Minister of State has not made up his mind, we will have to continue to help him do so by pointing out the flaws in each section. I am concerned that, on Report Stage, the Minister of State will claim he did not have time to address this issue and will promise amending legislation to introduce compulsory registration. If he is going to introduce compulsory registration he should take a chance and say so now so we can get through these sections quickly.
I know what I want to do because I know how Members feel about this issue. However, I have made certain requests of my officials. Members will be the first to know the definitive positions when I get them. I accept the points made about going to Report Stage with a complete package which Members have little opportunity to examine. That is why I propose this course of action. I am not sure if it is the first time it has been done but I propose to deal with these real difficulties and I want to respect the views expressed.
Chairman, I apologise if I seemed a little over the top but this is an important point. The issue of compulsory and voluntary registration of these bodies arose some months ago and I would have expected the advice would have been given at this stage so the Minister of State could introduce an amendment to leave the Bill as it stands or to introduce compulsory registration. If he proposes to bring in compulsory registration that will change the whole thrust of this and previous sections and that makes our job much easier. However, if bodies will be able to opt in or out, that changes it again. Otherwise we are considering this section only in an academic or theoretical sense. This is a crucial point. Will the Minister of State ask the Attorney General or whoever is giving the advice and let us know soon?
The Minister of State was adamant that this could not be done and we indicated that was not the case based on various conventions. We are trying to be helpful and if that is the case we could run through the rest of the Bill, including Report Stage, very quickly.
Deputy Stanton is making a reasonable case. The Minister of State is putting his reputation at risk in the sense that we are getting towards the end of this unfortunate Bill and he is exposing himself in that he will have led us to believe that vast areas of the Bill are being reconsidered for Report Stage. He may introduce only minimal changes on Report Stage and, given the format of Report Stage, we will not have an opportunity to recommit and go over this territory again. This would leave the Minister of State open to accusations of acting in bad faith, even if that is not what he intended.
A long time has elapsed since we first raised these questions and the Department must be formulating some view. It must have some idea of what will be acceptable to the parliamentary draftsman on important issues such as this. It is desirable that we be given some indication of where we stand before the end of Committee Stage.
The Deputy is being fair.
Members have helped to formulate a good Bill and we will have as good a Bill as is possible. At the outset I stated that this was the longest Bill in the history of the State and it will probably be longer by the time we are finished.
I have put as much of my reputation on the line as I can and, as I have said before, I am favourably disposed to compulsory registration. However, I am awaiting legal advice regarding the Berne Convention and so on, so I cannot go much further. We also need to consider the terms governing registration. I am hopeful of a positive outcome and have asked my officials to deal with this as quickly as possible. Members have accepted that we are all under strength in terms of resources but that is the current position.
We are moving quickly and that will help us to wrap up important issues such as this and all outstanding matters. The Bill has taken on a life of its own and we all recognise that we need to move as quickly as possible. This will help the Government to deal with the issues raised by Members, and it will do so.
Will we try to make some progress and have the briefing session suggested by the Minister of State?
I have given a particular assurance to avoid moving to Report Stage without people being aware of what is happening. It may be unprecedented to do so.
That might be helpful.
That is helpful because recent comments by the Minister, Deputy Harney, seemed to indicate that it was the committee's fault that this was being delayed. That is not true. We are doing the best we can to expedite matters. We are raising important points and seeking answers. I accept the Minister of State's word in good faith and hope we will soon have some indication of the advice.
I thank Members for their constructive contributions and the Minister of State for his response to the matters raised.
I move amendment No. 141a:
In page 144, between lines 43 and 44, 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 264(6)(f) are excessive or inequitable. The Controller shall review the scheme and determine a just and fair scale of charges.”.
This goes back to what is equitable and inequitable. The controller will review the scheme and determine a scale of charges.
What is meant by registration?
The Performers Protection Act, 1968, does not make provision for the registration of bodies operating licensing schemes in respect of performers. It is our view that there should be no restriction on entry of bodies into the field of licensing provided they conform to the definition of a licensing body under section 249 of the Bill. We expect that on the basis of previous experience in Ireland and elsewhere the dynamic of the market is likely to produce only a small number of such bodies as it is in the copyright field.
That having been said, we perceive a need to improve the opportunity for users of licensed material to access basic information about licensing bodies with which they may have to deal. For this reason it is proposed in the following section to establish a register of licensing bodies in respect of performers' rights to be kept by the Controller of Patents, Designs and Trade Marks. This register is to be open to public inspection and the public is to have the facilities to secure copies of extracts from the register. That is section 264(3).
Application and renewal procedures and fees are to be as prescribed by the Minister, in the case of fees with the sanction of the Minister for Finance. The controller will be empowered to register applicants provided they comply with the definition of a licensing body in section 249.
Under section 267 registration will be renewable at 12 monthly intervals. The controller may refuse an application for renewal or cancel registration in the event of a body ceasing to comply with section 264(5).
This section, dealing with the function of the controller in regard to licensing schemes, certificates and registration, is probably in order provided there is obligatory registration. As these were the regulations for voluntary registration it seems that there is not much work to be done other than to make registration obligatory. Many of the regulations are good and if the Minister tables an amendment on Report Stage stating that "it shall be required that all licensing bodies be registered" I assume the regulations will still stand. Otherwise, the amendment will be such as to merit a five hour debate as we deal with each section so see what are the requirements for obligatory registration.
I concur with the Deputy. I will ask my officials to try to deal with the issue in that way.
Will these new proposals add greatly to the workload of the controller?
We did not deal with resources during the course of the Bill. Perhaps I should refrain from giving Deputies an idea of the workload until we discuss the matter with the controller.
I move amendment No. 142:
In page 145, before section 270, to insert the following new section:
"270.-In this Part, and inPart IV-
'qualifying country' means-
(b) Another Member State of the EEA, or
(c) To the extent that an order under section 272 so provides, a country designated under that section;
'qualifying individual' means a citizen or subject of, or an individual domiciled or ordinarily resident in, a qualifying country; and
'qualifying person' means an Irish citizen, or an individual domiciled or ordinarily resident in the State.".
This relates to amendment No. 110 in my name. Is the Minister of State saying in favour of amendment No. 142 that it takes on board the point I was seeking to give expression to in amendment No. 110, that we should not be more generous to foreign companies than they are to us?
Deputy Rabbitte is correct. We dealt with this issue in the copyright area and this is a replica of that. It is more important here in regard to performers.
Amendment No. 110 was not moved as amendment No. 109 was agreed to.
I move amendment No. 143:
In page 146, before section 271, to insert the following new section:
"271.-A performance is a qualifying performance for the purposes of the provisions of this Part andPart IV if it is given by a qualifying individual or a qualifying person, or takes place in a qualifying country, in accordance with this Chapter.”.
I move amendment No. 144:
In page 147, before section 272, to insert the following new section:
"272.-(1) The Government may by order designate as a qualifying country enjoying protection under this Part andPart IV any country as to which the government is satisfied that provision has been or will be made under its law giving adequate protection for Irish performances.
(2) For the purposes of this section, an 'Irish performance' means a performance-
(a) given by an Irish citizen, or by an individual who is domiciled or ordinarily resident in the State, or
(b) taking place in the State.
(3) Where the law of that country, territory, state or area provides adequate protection only for certain descriptions of performance, an order undersubsection (1) designating that country, territory, state or area may contain provision limiting to a corresponding extent the protection afforded by this Part or Part IV in relation to performances connected with the country, territory, state or area.”.
This deals with equitable remuneration for the rental. Without prejudice to that section, where a performer has transferred his or her right he or she retains the right to equitable remuneration for the rental. It cannot be waived:
. . . not assign the right . . . to a collecting society for the purpose of enabling the collecting society to exercise that right . . .
While we are not on the Continental Shelf or the territorial seas of the State, we are still at sea on the issue of equitable remuneration. Will the Minister confirm that wherever it appears it will be defined?
Yes. We are looking at it wherever it applies. This stems from the rental and lending directive.
There is paternity leave under this section.
I would settle for maternity or paternity leave at this stage. This section deals with the moral rights of performers. RTE made a case on this. It was concerned that the moral rights afforded to performers are qualified in the same way as those afforded to authors. Has the Minister looked at that case and does he believe it has any validity under this section? There was a proposal that this section should be amended, the paternity right being capable of assignment or alienation which shall be waivable in writing by the performer. Is that the amendment that was accepted?
We dealt with that.
The film industry was concerned about this. Was it accepted?
Does the section include the amendment or did the Minister give a commitment to amend it?
It is the same as copyright. We debated the issue. I will check the records and find it for the Deputy.
Does the Bill as passed by Seanad Éireann contain the amendment on which the Minister gave a commitment?
I just wished to clarify that.
Section 299 provides for a waiver of rights.
Sections 293 and 296 are covered by section 299.
Section 299 is a new section.
It was dealt with in the Seanad.
I wanted to ensure it had not been forgotten.
As regards the waiver of rights, is there any protection to safeguard a primary owner who may come under pressure to waive rights? Some of these rights might be quite valuable. I read somewhere that they could be seen as basic human rights and there are questions over whether they can be waived at all. I know it is important for certain broadcasting companies that these rights would be waivable but has the Minister considered that aspect?
I remember dealing with that at the time. The position is the same. It would be a matter of contract between the two parties. The Deputy is correct. It is an important aspect for artists and in other areas. The film industry is one where we discussed this issue before. Artists should be very careful with regard to how they deal with matters but they would have legal representatives, especially those who are well established. I accept that it needs to be monitored carefully but that is the legal position. It would be dealt with by contract. Legally you do not give away the right but you agree that you will not use it. That is the legal term. You do not literally give it away.
Section 299 states it shall not be an infringement of any of the rights conferred by this Part, meaning Part IV of the Bill. The UK legislation provides that translating something from one language to another is not a breach of the integrity right. That is not specified in sections 295 or 105. It states it shall not be an infringement conferred by this Part to undertake any act where the person entitled to the rights concerned has consented to the use of those rights. Is TG4 breaching integrity rights if it translates something from one language to another? It is important that this would be covered. It has been brought to our attention that UK legislation specifically provides that translation will not breach the integrity right but it does not state that here.
We are talking about performers and I wonder if that issue applies to translating.
Section 105 deals with the integrity rights of the written——
Yes. It could be applicable in section 295 even for performers. The Minister says the integrity right is not infringed by anything done. Sections 294 and 295 are waivers and are wide in their description, the right conferred to be known as the integrity right. The issue of translation may be important now that we have TG4.
I take the Deputy's point. Permission must be obtained to make translations under copyright and that principle would apply here.
Will the Minister clarify that? Where is that in the legislation?
My advice is that translation is a form of adaptation. It is a related matter. You need permission to do it.
It would be one of the exclusive rights in the legislation. I will check that for the Deputy.
What is meant by alienation in the phrase, "the rights conferred by this Part shall be incapable of assignment or alienation"?
Assignment means selling and alienation means other forms of giving them away.
As we have reached 6 o'clock I intend adjourning the meeting. I thank the Minister, his officials and the committee for their input today which is reflected in the substantial progress we have made. I remind Members that the joint committee will meet tomorrow to discuss our superstores report and the groceries order with the Competition Authority and officials from the Department. It will take place at 2.00 p.m. Tomorrow's meeting is very important and I ask Members to be in attendance at that time.
I know the Minister is aware that theEuropean Voice of 16 March reported that the droit de suite will be rubber stamped by EU Ministers. I am sure he will want to be up to date by introducing on Report Stage an amendment reflecting this. We must have the provision introduced within five years and the thought of revisiting this legislation in the next five years is too much to contemplate.
Our next meeting on the Bill will take place on Tuesday, 18 April, at 2 o'clock. We will meet until around 4.10 p.m. with a possible resumption at 5 o'clock if necessary to conclude Committee Stage. In fairness to Members I ask the Minister, in light of what he said about shortage of staff, etc., that the briefing sessions take place prior to the next committee meeting if possible. This will allow Members tease out aspects of the Bill prior to Report Stage when there will be certain time constraints. I am trying to be accommodating and fair to Members and I ask the Minister to accommodate this prior to 18 April.
My earlier proposal was to complete Committee Stage and then go through the entire Bill. I have listened to what has been said and will be involved in that process. We have had 11 meetings and I cannot give the commitment sought by the Chairman.
Can the Minister endeavour to have a meeting?
Between now and the next meeting of the committee we will be preparing to deal with the remainder of Committee Stage.
I am not looking for that type of commitment. However, I do not want there to be only three days between Committee and Report Stages. We will have to make a decision as to which amendments we should resubmit on Report Stage and I do not want to resubmit them all if the Minister intends to do something good in terms of them.
I will need some time between Committee and Report Stages. We are all in the same boat.
Therefore we will have the meeting following Committee Stage. Is that agreed? Agreed.