An additional amendment No. 145b. has been circulated. The debate resumes on section 303.
Vol. 3 No. 16
An additional amendment No. 145b. has been circulated. The debate resumes on section 303.
I wish Deputies Lenihan and McGuinness well in their new posts. I thank the committee for the co-operation received at the last meeting.
The EU Database Directive 96/9 EC which was to be implemented by 1 January 1998 provides for the copyright protection of certain original databases of which the selection and arrangement of the contents constitute the author's own intellectual creation and introduces a newsui generis right against unauthorised extraction or re-utilisation of the contents of databases, both original and those which meet the requirements of the directive. The issue of copyright protection of original databases has been dealt with in Part II of the Bill in a comprehensive manner and it is now our intention to deal with the sui generis protection of databases in Ireland.
The intention in creating this new right is to protect the investment of money, time or effort that goes into compiling databases even if they do not qualify for copyright protection in the intellectual creation of the makers. The term of protection afforded the new right will be of more limited duration than of copyright, that is 15 years from completion or publication of the database, although substantial new investment will qualify the database for an additional term of protection. The right will give the maker of the database the ability to control extraction and re-utilisation of all or a substantial part of the contents of the database. As with copyright, the taking or using of insubstantial parts will not be an infringement unless the repeated and systematic extraction and-or re-utilisation of such parts conflicts with the normal exploitation of that database or unreasonable prejudices of legitimate interest of the database maker.
We have dealt with the copyright section, the whole question of original databases, and we now move to thissui generis right. As we proceed from sections 303 to 343, Members will see a replication of many of the things we have been doing in the copyright and performer section. We can take them as we meet them.
Were the amendments moved?
No. The Minister is speaking on section 303.
Surely it is correct to move the amendments first.
That is correct but I allowed the Minister in.
I apologise, Deputy, for the overview. That style has been adopted in recent times.
Amendments Nos. 144a and 144b are related and will be taken together by agreement.
I move amendment No. 144a:
In page 159, subsection (1), line (7), to delete "investment".
This deals with the definition of "substantial", a word with a vague meaning. We have tried to find a definition which puts an onus on the Minister to decide from time to time what will be substantial. With so much money involved in the whole system, £10,000 could be considered a small amount of money. The Minister should have clarity about the use of the word "substantial". There are so many other parts of the Bill that will result in court action that it is important that we know the meaning of a substantial investment in a database.
This amendment would allow the Minister to specify what amounted to "substantial" in terms of the financial investment in a database for the purpose of the database right. The concept of substantial investment is drawn from Article 7 of the EU database directive which defines the object of protection of the database right.
While the directive does not specifically prohibit the provision suggested by the Deputy, there is a practical problem in that the question of what represents a substantial investment is relative as much as absolute. An insubstantial investment for a large database might be substantial when applied to a smaller database. For that reason there would be a risk that setting a specific financial minimum might deprive some databases of their entitlement to protection under the directive. In the light of those considerations, I hope the Deputy will agree that it would be better to leave the question of what is substantial to the facts of the individual cases.
The Minister is saying that no one will know what constitutes a substantial investment. It will not be 30% or 20% investment. Is the Minister saying that the percentage of an investment, extraction or re-utilisation will be based not on the percentage of the product but on the product's size? At the end of the day, 20% is 20% no matter what the size. I can see this causing complex legal arguments. That is why substantial should be defined as meaning not less than a figure which the Minister considers substantial. It is a very loose definition.
Substantial refers to the investment, extraction or re-utilisation. It is also qualified by the terms "quantity or quality", or a combination of both. We cannot be anymore specific. There is enough there to enable the courts to determine it. My advice is that it is best dealt with in that manner. Substantial relates to quality, quantity, investment, extraction and re-utilisation. The courts will decide on that basis.
This is important. "Insubstantial" is described as being subject to section 307(3), but that states that if someone uses a small piece of something over and over, they are breaching the spirit of the law and using that piece substantially. There is no description, however, of substantial. Section 307(3) requires a definition of a substantial part of those contents. Is there usage similar to this in the 1963 Act?
This afternoon the Minister for the Environment and Local Government is demanding time in the Dáil to rush legislation through tomorrow which, because of sloppy drafting and the Committee Stage examination in 1997 not being as fine as is the case now, excluded a clause thus calling into question the validity of any charges levied by county councils since 1997. The Government has to rush that legislation because it published a list of legislation to be repealed and then repealed the wrong section of an Act. People may think I am being pedantic but we can end up victims tens years down the road when someone will ask why they were not told what substantial meant. I can see the merit in each case being decided individually but we are storing up trouble for the future.
This is important work and I have never suggested it is boring. We all find it difficult. We will be moving on to more exciting legislation in the next few months. The terminology comes from the directive and that gives a degree of assurance. We should not depart too far from EU directives. Decisions are left to the facts of each case.
What is the EU position on rights regarding dot.coms? We have seen abuses of this area.
That does not come within our jurisdiction. If it did, we would be dealing with it. This has to do with e-commerce and other areas. There are other Ministers involved but it is a matter about which we should all be concerned. We referred to it briefly at the last meeting. It is not part and parcel of this legislation but I share the Deputy's concern.
Should it not be?
There are all kinds of things we will have to do when the Bill is completed and I will be more than happy to look at that and other issues with my Government colleagues. It is a matter we will all need to address in some shape or form and while I would have an interest as a Member of Parliament, it is more an issue for other Ministers.
Is the Minister saying it will be dealt with under the e-commerce Bill?
It is not a copyright issue. It would have implications for trade marks and the Department of Justice. It relates to the names. Collectively as Members of Parliament it is an issue we should all look at.
I raised this issue with the Taoiseach at Question Time last week and the concern that his name was being used on a pornographic website. Other people have had their names purloined and used on websites. I told him that we were debating this and the patents legislation and that it may be relevant to it. The Americans have not found a way of solving this problem but no doubt a solution will be found. Is there anything that could be inserted in this or the patents legislation that allows you ownership of your name and does not allow someone else to take it without proof that they were christened with the same name as you?
This is a very important issue, particularly the effect it may have on one's name. I do not wish to put the Minister on the spot but this is comprehensive legislation and one would imagine it would be possible to cover this area. Perhaps the Minister could come back before we conclude our business and indicate whether it should be included in this or alternative legislation. It is not good enough that we are dealing with the Copyright and Related Rights Bill and we know there is an issue that warrants being addressed. Surely the select committee should be advised on how it will be accommodated and under what legislation, should it not be under this Bill.
I can clarify that it is not a copyright or patent issue. It has trade mark implications. It is dot com and the internet is very much an international area. We should be conscious of what we commit ourselves to and I believe it is something we should address collectively. There is no point in saying I will come back with an instant solution to an international problem at the next committee meeting. I will not be able to do that. It has been the subject of discussions in the Chamber which I have heard and, as Deputy Owen said, she raised the matter with the Taoiseach. All we can do is try to discuss it at an international level. It will be discussed at WIPO level which is one of the international agreements to which the Bill relates. As a Member of the Government, we will apply our best abilities to it but it will have to be done at an international level. There is no point in kidding ourselves that we can bring in instant solutions or attach something to the Copyright Bill. We have gone off the rails a little with regard to this legislation.
I do not see it as a copyright issue or as part of the e-commerce Bill. However, it is one that has to be dealt with and because of dot com it involves America. We are introducing the e-commerce Bill and I believe it is the first to be introduced in Europe in terms of security on the Internet. As much as I would have the right to use the name "johnmcguinness.com", some other John McGuinness would have a similar right provided he changed the introduction to the website. I would like the Committee on European Affairs to look at what is happening in Europe with regard to the problem that has arisen. I do not know what committee interacts with agencies in America but the problem is such that it needs to be dealt with urgently. Perhaps arising from this discussion instead of talking about including it in this legislation, we should broaden the debate and deal with it as part of European legislation and our agreements with America. That must be done quickly.
I am happy that we have stimulated debate on the issue and perhaps we should ask the clerk to forward the relevant transcript to the Committee on European Affairs to see how it might progress the matter.
Much emphasis was put on this issue in Europe after the Lisbon Council. If that committee could debate the issue and call before it those who have a role in formulating legislation in Europe and beyond, that is where it should lie.
I can see the Chairman's own name website: "ivorcallelytaxis.com".
We will have another one: "ivorcallelyrollerblades.com".
I am pleased to advise that it is just "ivorcallely.com".
What relevance has the First Schedule to this section? Part VI, 45. (1) states:
Where a database-
(a) was created on or before the 27th day of March, 1996, and
(b) is a copyright work immediately before commencement of,
copyright shall continue to subsist in the database for the remainder of its copyright term.
Is that under section 308 or 306?
It is relevant to any of those sections.
Section 308 specifies the term of protection.
Does the Chair wish me to move on to that?
Not if the Deputy does not raise it again.
No, I will not.
Part VI, section 45, deals with those that were created before a particular date, 27 March 1996. They would have a particular protection under the old copyright legislation which would be life plus 70 years. As the Deputy knows, we are creating a new period of protection here, 15 years, from the end of the calendar year in which the making of the database was completed. It is simply to allow for works created before that time.
The First Schedule, PART VI, states:
(a) the making of a database was completed on or after the first day of January, 1983,. . .
the database right shall subsist in the database for the period of 15 years commencing on the 1st day of January, 1999.
The First Schedule, PART VI, 45. (1) states that it shall subsist for the remainder of its copyright term. Therefore, are there is a free period of copyright from 1983 to 1999? That appears in another place in the Bill which deals with this matter and, rather than wait until we get to it, this might be the time for the Minister of State, Deputy Kitt, to tell me the relevance of Part VI of the First Schedule under the heading TRANSITIONAL PROVISIONS AND SAVINGS: DATABASES.
Does the Deputy need to know this now or can she wait until later?
I will not starve if I do not know it, but will the Minister tell me at some point what is the relevance of Part VI of the First Schedule?
I will tell the Deputy that before the day is out.
I will wait with bated breath for the good news.
The meaning of "fair dealing" arises here again. Section 312(2) states that it means "the extraction of the contents of a database by a lawful user to an extent reasonably justified by the non-commercial purpose to be achieved by the extraction." The word "substantial" is used here again. The Minister of State stated that the EU directive does not cover it. The words "reasonably justified" are used also. These are very subjective words. The Minister of State will tell me that that is the way it is always written, but is he storing up a whole heap of trouble? The State's copyright legislation is full of minefields and does not serve the copyright owners, people who are challenging the copyright owners or people who want to play music who feel they need not pay copyright. It is not helping anybody, and I am afraid the Minister of State is doing the same thing here.
What does the phrase "to an extent reasonably justified by the non-commercial purpose" mean? Will the Minister of State give an example of what would be "reasonably justified by the non-commercial purpose to be achieved by the extraction"? Would it be for education?
This goes back to research or private study. As I said earlier, some of this mirrors what we have been dealing with in copyright already. Students who would be involved in research or private study would be entitled to do so much without having to get the permission of the database owners. This is the user-friendly consumer dimension of the legislation. The emphasis is on non-commercial purposes.
Maybe this has been raised before.
My note states that Article 9(b) of the database directive provides for the exception to apply to teaching and scientific research. We consider that limiting the research to scientific research is not warranted in this instance, especially in view of the content of Recital 36 of the database directive which defines scientific research. Therefore, we propose in section 312(1) to allow the exception in respect of all research. This should be something which should be welcomed by those of us interested in educational research.
It should be noted that Article 9 of the database directive provides that extractions for scientific research must only be to an extent justified by the non-commercial purpose - we are talking about private research - to be achieved, and that the source must be indicated. Accordingly, the exception is subject to a fair dealings test.
I want to bring to the attention of the Minister what was said in the UK about fair dealing. On the concept of fairness, the 14th edition ofCopinger & Skone James on Copyright states that no doubt the expression fair dealing will be construed in the 1988 Act in the same way as it was under the 1956 and 1911 Acts, and that the question of what is fair has most frequently arisen in the context of what constitutes fair dealing for the purposes of criticism or review, but despite the rather different policy considerations which are involved in each of the different areas, it is usually assumed that simple criteria of fairness will be employed whether the use in question involves research or private study, criticism or review, or the reporting of current events. It states that unlike the position in the United States there are no statutory criteria of fairness under the UK copyright law, but the test that has been judicially developed incorporates a number of similar considerations. It further states that it has been said that once it is established that a substantial part of the work has been taken, no defence of fair dealing will be likely to succeed. This would, however, render the fair dealing provisions without purpose or effect and would be impossible to reconcile with the decisions, and that, it is suggested, would be clearly wrong.
The UK legislation is in place longer than the Irish legislation and this shows that it is giving rise to problems on the question of what is fair dealing. If one has copied a substantial part of the contents illegally, clearly one cannot claim fair dealing. A person cannot state that he or she has done it but will now claim his or her right to do it under fair dealing. That is why I make the point that "substantial" is a subjective word which does not mean a great deal. I see a lawyers' charter in section 312.
We attempted to define "fair dealing". We did it in copyright and we are doing it here also. In many ways it falls into the argument which the Deputy has just made. In the US fair use was defined but in the UK it was not. We are endeavouring to define fair dealing. As the Deputy will be aware, we debated this matter when we were talking about copyright.
That has not put our minds at rest about it. I still think there will be a problem with this. The definitions are too subjective and arbitrary. On the use of "reasonably justified", one crowd will say that it is perfectly reasonable to take a big chunk of a football match or play from a database for non-commercial purposes. I do not want to keep arguing about it but a point I will continue to make is that it is almost impossible to get a fair definition of these words.
We are working on directives. I appreciate that it is difficult to define and one must try to define it within the different sections, in this case on databases.
The section states that it includes an educational establishment. In the case of many other sections, such references went on to state that these were as prescribed or defined by the Minister. That is not stated here. Therefore, may I take it that any establishment which can call itself an educational establishment is covered here?
The section is about exceptions for educational establishments. This provides for extractions done by persons giving instructions and the exceptions are limited. It is similar to the exception in the copyright and performers area. We made various commitments in those sections of the Bill and any commitments I gave the Deputy would be similar to the ones I give her now. It is such a long Bill but, as far as I know, we discussed it at the time.
Incidentally, an "educational establishment" means any school and any other educational establishment prescribed by the Minister under section 54, including universities.
I am wondering about the kinds of groups which would be covered because databases are probably more relevant. A private company which advertises and gives courses in the use of computers is not really an educational establishment, it is a business which is selling computer skills. There are several such businesses in my constituency. They advertise classes on Saturday mornings or Thursday evenings, and people go along and do a six week course. That is the type of organisation which might use a database because of the nature of what it is doing. Would such people find themselves in breach of the law, or are they allowed to do that?
I could look at that whole area. Section 54(4) provides that the Minister may specify by order establishments other than schools to be educational establishments for the purposes of this Act. It is an issue we should look at to examine the points the Deputy makes.
As Deputy Owen pointed out, this is slightly different from what we did in relation to copyright. It also repeats the particularisation of the person doing the extraction, which must be the university professor or the student. I do not know whether in practice, in the myriad of circumstances one could contemplate, a professor does that kind of work in all cases. I doubt it. Where, for example, FÁS is providing courses which are designed for the purpose of upskilling people at work or, perhaps, for inducting people into work, it is clearly not a lawful user for the purposes defined here. However, one could argue from a social point of view that an organisation like FÁS should have the benefit conferred by section 313, given the nature of the work in which it is involved. I wonder whether any thought has been given to that.
The suggestions made by the Deputies are very useful. We should look at how the linkage between this and the copyright section stands up at this stage. I would be happy to look at the idea of harmonising both sections of the legislation and to seek advice on it to see what we need to do.
This is about the copying of material in public records. It provides that a substantial part of the contents of a database which are comprised in records which are open to public inspection may be extracted or re-utilised without infringing the database right in the database. This is a whole new area. It is not like photocopying a book. This is something that can be done with the click of a button. In the blink of an eye a database can be copied from one place to another. Somebody who is copying a big chunk in a book could be stopped at the photocopier if it was felt they were doing something wrong. However, in the case of databases, we are talking about technology and computers. It says here that all or a substantial part of the contents which are open to public inspection may be extracted or re-utilised without infringing the database right in the database. That is a pretty open-ended taking of material. What would be the situation if the database which is open to public inspection were not a database prepared by the public body that has it open for inspection? A library would be a relevant example. I can go into a library which has a database which it, in turn, has purchased from somebody else. Can I copy chunks of that onto my laptop, and does the person who created the database have any rights? Is he or she the loser?
This is straightforward in that it is the public inspection of the contents of a database which are comprised in records that are open to the public, for example, the Trade Marks Register. This is what we are talking about here. It could be electronically in place, or it could be a book or a ledger. It is a straightforward provision which simply provides that the contents of a database which is part of any records open to inspection by the public may be extracted or re-utilised without infringing the database right in the database. Similar provision is proposed in the Bill. There are mirror provisions in this Bill in respect of performers' rights. The UK introduced a similar provision to this into their law in paragraph 5 of their Bill. In the context of a library, it is my understanding that it would have to have some agreement with the database rights owner. However, we are not talking about libraries here, we are talking about something that is open to public inspection.
It does not say that it is a record database. It says "comprised in records". That has a different meaning from what the Minister has just said. I can understand if it is a record of names, for example.
We are simply implementing Article 9 of the directive which provides that member states may stipulate the lawful uses of a database which is made available to the public in whatever manner and may, without the authorisation of its maker, extract or re-utilise a substantial part of its content, for example, in the case of extraction and-or re-utilisation for the purposes of public security or an administrative or judicial procedure.
The word "record" does not come into that.
That is the word that is throwing me a bit.
We may need to look at this.
Is it not a records database that is open to inspection and chunks of it can be taken? It is the way it is written, "which are comprised in records". That could open up the definition of what can be taken. I know what the Minister is saying one is allowed to take - pieces of records, for example, lists or names or registers. I did not hear the Minister reading out the word "record".
I will ask my officials to look at that to ensure clarity.
What is an anonymous or pseudonymous database?
A pseudonymous database would be by a person using another name. An example of an anonymous database might be a list without a name.
The mind boggles.
Is it not the first time the mind has boggled. Having reached section 320, the mind has boggled on numerous occasions.
I can understand what an anonymous work might be. Would it be of any help to Mr. Justice Flood if we worked out what an anonymous database means?
The thinking behind this is to harmonise this section of the legislation. Dealing with databases with copyright elements is the motivation behind this. If the Deputy or I discovered a list for which we could not establish the author, that a practical example of what this section would deal with. It may not be practical. It may not happen too often but I presume the legislation covers these eventualities.
On whose hardware would the list be?
It would not have to be computerised. It could be on a ledger, index cards or whatever, or an old style list. It would not necessarily have to be an electronic or computerisation representation.
Should anybody have queries on section 320 we will refer them to Deputy Rabbitte.
I move amendment No. 145:
In page 166, subsection (1), line 41, to delete "database right".
Is the amendment agreed? It was already discussed with amendment No. 96.
Amendment No. 96 deleted the word "copyright". The Deputy will recall that this amendment was combined with amendments Nos. 96 and 141.
The amendment has already been discussed and has been moved.
By way of reminder to the Minister I should have referred on section 322 to the same presumptions that exist in section 134 in relation to copyright. The presumption of guilt is assumed in the same way as with copyright. We are back to that argument again about which some of us are concerned.
Section 323 deals with licensing schemes. Will the Minister put on record that in his examination prior to Report Stage of the obligation to register licensing schemes he will ensure the same will apply for databases?
Whatever we do in another part of the Bill we will do here also. That is reflected in our earlier discussions.
Is Deputy Owen happy with that? There are a number of sections coming up which deal with references and applications relating to the licensing schemes.
It is parallel to what we have done before.
Yes. So that we do not have to continue stopping, in general the situation is that all the sections relating to the licensing schemes and the role of the controller etc. may well be irrelevant or may take on a different relevance if the Minister introduces an amendment making it obligatory to register a licensing body, out of which come the licensing schemes. These sections are superfluous so long as there is no obligation to be a licensed body. Maybe somebody would like to register and maybe not and, if not, it does not matter and it has no effect on them. Am I right in assuming that after the Minister comes back on Report Stage this section and the sections up to section 343 might have a different relevance to the legislation because then it will be obligatory and he will have to look at each of these sections to see if they need to be amended.
The reason I ask that is that I do not have the knowledge or the time to go through these sections one by one to see whether, when you bring in an obligatory registration system of licensing body, each of these sections need to be amended. I depend on the Minister, as I am sure Deputy Rabbitte does, arising from an obligatory licensing scheme to either get rid of all this bumf here or make them all relevant to an obligatory system.
The same will apply in relation to licensing for copyright performers and databases. I appreciate the Deputy's point of view. That will reassure the Deputy in regard to how we deal with the next number of sections.
I hope that was helpful in dealing with the relevant issues associated with the licensing schemes and licensing bodies.
We have moved on to a new chapter.
This section deals with registration of licensing bodies in respect of database right.
This is a mirror image of the earlier sections dealing with copyright.
The same will apply here. It is part of the same review.
That is fine.
I wish to ask about section 343 because it indemnifies the controller and would be relevant whether there is an obligatory registration system. How will that be adjudicated? The section reads: "No action or other proceedings shall lie or be maintainable against the Controller (except in the case of wilful neglect of duty) in respect of anything done or omitted to be done by him or her in thebona fide exercise of any functions, powers or duties conferred or imposed by or under this Chapter.”
Suppose somebody says there was wilful neglect of duty, how does one actually take a case?
The courts would decide in that situation.
Does it give a penalty or is that covered in the other offences?
It is civil proceedings.
Will the Minister remind us what we agreed already in terms of the jurisdiction of the controller on which we were to have some discussion. Was the discussion to be on this chapter or post completion of Committee Stage of the Bill?
I will remind members of what I said on this issue given that we have made steady progress. I said I considered the idea of establishing a copyright tribunal to discharge dispute resolution responsibilities under the Bill but decided not to adopt it. This was because a tribunal is an excessively complex, expensive and bureaucratic approach to resolving the limitedrange of disputes in question which concern certain matters related to copyright licensing schemes. In the context of the relatively small Irish market for protection material and in view of the experience in the UK, I considered that the continued use of the controller of patents, design and trade marks for this purpose would be more appropriate. Obviously arguments were made by Deputies and Senators in the debate to the effect that the widening of his or her dispute resolution duties to the field of performers' rights and database rights may significantly increase the difficulties for the controller in discharging the dispute resolution responsibilities in question efficiently and effectively. I said that the legislative and administrative arrangements would need detailed examination before an alternative tribunal could be established.
My officials will maintain contact with the Attorney General's office with regard to the constitutionality of introducing into the Bill a section enabling the Government, on the Minister's advice, to establish a copyright tribunal by order at a later date, should this be deemed desirable, to assume the copyright and related rights dispute resolution responsibilities assigned to the controller under the present text of the Bill. The advice of the Attorney General was that an enabling provision of this nature was likely to be held unconstitutional however it was designed, as it would assign excessive discretionary power to the Minister and the Government. On foot of this advice I decided not to proceed with the enabling provision amendment. The question is whether the Irish market is likely to generate sufficient business to justify the establishment of a copyright tribunal, even on a flexible non-standing basis.
I accept that the question also arises as to whether the dispute resolution mechanisms assigned to the controller under other intellectual property legislation - trademarks, patents and industrial design - are more appropriately and efficiently discharged by the controller as at present. Accordingly, it is my intention to institute an examination by my Department as to whether the wider range of dispute resolution responsibilities could usefully be assigned to an alternative structure, perhaps along the lines of an intellectual property tribunal or commission.
Will the Minister of State read the last sentence again?
We are considering an alternative structure, perhaps along the lines of an intellectual property tribunal or commission which would deal with copyright, trademarks, patents and industrial design. This study is something to which I have committed my Department and myself. The study is ongoing; it is not concluded yet. Should it be decided to establish a new dispute resolution tribunal in the intellectual property area, it will be necessary for me to bring appropriate legislative proposals to the Houses of the Oireachtas following the advice already given by the Attorney General in this matter. That was the position at the time and it is the position now. Issues have been raised by Deputies and Senators during the course of the debate and that is the updated position.
I thank the Minister of State for outlining his latest thinking on this question. However, with respect, I am not entirely sure that his outline is coherent. The Minister of State seems to be saying that he gave consideration at one stage to the desirability of an enabling mechanism in the legislation to permit him to establish a tribunal at a later stage and that he was minded to do so until the Attorney General advised him that to confer that extent of discretion on Government would be unconstitutional. What is the difference in terms of committing himself now to examining the possibility of an alternative structure such as he instanced - the Minister of State spoke of an intellectual property tribunal? Is it not the same issue, the only difference being that he seems to hold out the prospect of new separate legislation? It appears that the Department and the Minister agreed at one stage that a tribunal was desirable. Now he seems to be saying that the obstacle to establishing it is the Attorney General's advice and that he still thinks that an intellectual property tribunal which would take in the entire range of intellectual property, and not just copyright, is desirable but that it will require separate legislation.
Having regard to the number of years we have been awaiting this legislation and the fact that we came under such pressure from certain quarters that we had to rush through a segment of this legislation earlier, is it not desirable that we should insert, at the appropriate juncture, a couple of sections to say that we will cause such a tribunal to be established after the legislation?
I am not sure that I understand the argument regarding the smallness of the Irish market. What can the Minister of State tell us about it or has an assessment of its size been done? The question of the powers the legislation confers on the controller is immediate and critical. What is the current assessment of the capacity of the controller's office to discharge the functions conferred on it by the present legislation? These are questions on which we must seek clarity before we proceed.
Deputy Stanton and I tabled an amendment to section 144 regarding the establishment of a tribunal, but it was ruled out of order on the grounds that it would have imposed a cost on the Exchequer. Whatever my feelings about the need for a tribunal when we began the debate on this Bill, I am even more convinced of its need now, particularly in view of the fact that the Minister of State has hinted at the introduction of an obligatory registration system. The Minister of State is wrong to say he might look at this question at another time. The United Kingdom established a tribunal.
I did not say I might. I will.
This legislation gives extensive additional responsibilities to the controller. Everyone who has lobbied Members about this legislation, including those who have expertise regarding the effect of the legislation on their businesses and other businesses, are agreed that the dispute resolution and appeals system as it exists now and will exist when this legislation is enacted, is unworkable. It is unworkable today and will be unworkable when this legislation is signed by the President. I do not say this as a personal criticism of the controller. The controller's office does not have the necessary staff, resources or expertise. This is proved by the case which has been before the courts and the arbitrator for four years. I do not know who is to blame for this long delay. I have tabled an amendment regarding the arbitrator.
The Minister of State is making a mistake. He must set up a tribunal with sufficient staff and resources to provide a quick, cheap and effective way of resolving people's resolutions. Who will decide on equitable remuneration and fair dealing? The courts are not the right places to decide these issues. The valuable time of our judges and courts should not be taken up with disputing equitable remunerations. A tribunal is the right way to do it. The word "tribunal " has come into such common usage that people are worried by it. However, we are talking about a body which will have sufficient expertise across the range of issues which will be presented to it. No individual can have such expertise. We are talking about a body which would have to have sufficient expertise to deal with the range of issues with which it may have to deal. No one person has the required expertise. The concept of a tribunal staffed by economists and lawyers already applies to the Competition Authority which is bereft of resources and from which staff are leaving practically every hour. I urge the Minister of State to return to the Attorney General and say to him that the efficient working of an obligatory registration system for licensing bodies would be helped by the establishment of a tribunal.
While I accept that the Minister of State may not be in a position to dot all the i's and cross all the t's, an enabling provision could be included in primary legislation. The Solicitors Act, 1994, contained many such provisions under which the Minister concerned made substantial changes. These included the introduction by solicitors of a voluntary complaints procedure. Given that the then Attorney General gave his permission to the inclusion of these enabling provisions covering substantial elements of the Act in 1992 or 1993, why is the Minister of State now being told that he cannot do the same in the case of this Bill?
Perhaps the Attorney General was not aware of everything the Minister of State had in mind for the controller but there is a need for a tribunal with the necessary expertise which could take the required action against a licensing body where it fails to meet all the criteria laid down. Following the introduction of the registration system for licensing bodies promised by the Minister of State, the controller on his or her own will have to examine the detail of every application - when and from whom did the applicant acquire the rights in question and who the secondary rights holders are - before a body can be registered. The system will grind to a halt unless the Minister of State provides for the establishment of an efficient and effective tribunal.
Is the Minister of State 100% certain that he will be in a position to provide the extra resources required? How many extra staff and millions of pounds will be provided for the controller? Given that we are now talking about criminal rather than civil cases, how many gardaí with specific expertise will be assigned to the controller from the national bureau of fraud investigation, the national bureau of criminal investigation and the Criminal Assets Bureau? Has the Minister of State been in touch with the Garda Commissioner? I know from the smile on his face that he has not been next or near him and the matter has not been discussed.
I am sorry to interrupt the Deputy but she is probably pushing the debate a little further than we have.
I have already referred to those parts of the Bill where the words "substantial" and "reasonable" are not defined. The controller will not be able to sort out the matter and the courts will be clogged up as a consequence. The case to which I referred has been continuing for four years. It has been referred back and forth between the courts and the arbitrator. It is a disgrace that the law is so inexact. If I was the controller I would buy an apartment on an island as far away from here as possible.
There are no islands off Kilkenny.
How will the controller operate this Bill?
Let us stay on the island of Ireland and deal with section 344.
Perhaps some cases will end up in court but there has to be an arbitrator who would make decisions on the wider implications of the Bill.
The advice of the Attorney General was that the enabling order was likely to be held unconstitutional. I have no control over his response. There was also a concern that it would assign excessive discretionary powers to the Minister. The advice of the Attorney General was sought in the context of the arguments made by Deputies and Senators. The next step was to commission a study. Deputies Owen and Rabbitte have held ministerial positions and no doubt had studies conducted of various issues. I intend to ensure the study is concluded without unnecessary delay. I appreciate the points made by both Deputies and the pressures exerted on the controller. For this reason an intellectual property tribunal which would encompass such matters as trade marks, patents and industrial design as well as copyright is being studied. We are also updating our patents legislation.
Will the controller perform this function in the meantime?
The Deputy is correct, there is a need to put systems and structures in place. There is a tribunal in place in the United Kingdom to deal specifically with copyright legislation. We are undertaking a more comprehensive examination.
I would like to be in a position to provide all the resources necessary to meets all our needs and requirements. In this context we are in consultation with the controller on the resources required for the Patents Office. I will be writing formally to him on foot of the select committee's deliberations.
With respect, it is not a letter that the controller needs, he needs resources.
The Deputy and I have tabled amendments to later sections. I will address the fundamental issues that need to be addressed. While I appreciate the contributions of Deputies opposite, my attitude is that I have to get the Bill out of the traps. I accept that the answer to the accusation that it will not be perfect is yes, but this is the most prudent way of dealing with the matter. I want to get the Bill out of the traps to meet all the Government's obligations. Equally, I share the concerns of Deputies who say that there is unfinished business, which will be dealt with comprehensively by way of a study, the conclusions of which will require separate legislation. There is no equivocation. The advice was that it was not possible to include enabling provisions for the reasons outlined. It will be the Minister's responsibility to deal with the conclusions of the study.
Why can we not include the words, "There shall be an intellectual property tribunal established not later than 12 months from the date of effect of this legislation..?"
It is my understanding that, in legal terms, that is not the correct way to do things. I have stated that we are carrying out a study involving all elements of intellectual property and that commitment exists. The Government has given a commitment to effect what the Deputy has articulated although, admittedly, it is not in the legislation. The Attorney General has advised that including a phrase such as "there shall be" to indicate what will happen is not the appropriate way to address this issue.
The Minister of State is missing the point. That is not what Deputy Rabbitte is requesting. The Minister of State is talking about including reference to the establishment of a tribunal and that the order shall be laid before the Library for 21 days or whatever. We wish to see the intent of such a tribunal built in but that will require primary legislation. Can the Minister of State not include in section 349 reference to the fact that a tribunal shall be established in the future? I accept that this is unusual because it involves a policy decision.
The Minister of State is progressing the patents legislation but I do not know the schedule for that legislation. If he had the reports by the time the primary legislation dealing with patents is being processed he could include this provision in that legislation. This is a way out for him because he his going to ask the same tribunal to examine a number of areas. Can he give us something to indicate that this issue will not fall because I would hate to have to say I told you so?
I understood the Minister of State to say the Attorney General felt this measure might be constitutionally infirm because it proposed to address this issue by way of an enabling order in the legislation. I do not think the Attorney General would have any reservations about a definite provision in the legislation to set up an intellectual property tribunal. I thought the Minister of State was going to say he would be pre-empting his study if he were to do so. If that is the case, why did he decide he was going to do it but was stopped by the Attorney General? That is what I meant by a certain amount of incoherence.
I asked the Attorney General about this issue as I would do concerning any sensible proposals. That is honouring the commitments we gave at various stages of the legislation to seek advice. I could give some kind of edict or whatever about this issue and state my views and I can see the merits of a tribunal. However, it is right to follow the process I have outlined which involves a study. The Deputy put words into my mouth with regard to pre-empting that study. With respect to the complexity and comprehensive nature of the issues and the need to look at intellectual property legislation in its broadest sense, I would ask Deputies to take my word that a comprehensive study is being carried out. I cannot predict how long that will take but I will do everything possible——
Never in the history of legislation have so many ministerial words been taken by so few Deputies in such good faith.
I appreciate that but I am anxious to get moving on this legislation. A number of commitments will have to be pursued by me or other Ministers and there will always be work to be done because of the depth of legislation in this area. There will be a study and necessary action will be taken on foot of its conclusions.
The Department replicated much of the UK legislation. Why did it not replicate this area? The Minister of State should not claim it is because we are a small country. We have the same amount of money, books, libraries, universities, texts and so onper capita. The Minister of State should not claim that we did not need it because there are only 3.5 million or 4 million people in this country. Was it considered? There may be a good reason for it but was it because he ran out of time? Did his officials want this?
One reason was that it was felt that a tribunal was an excessively complex, expensive and bureaucratic approach. Another reason was the size of the Irish market as distinct from the UK. The UK's experience has been examined but I am setting out how we wish to approach this issue to look at the broader issue of intellectual property. That is appropriate in the Irish context.
So it was considered.
What is the Minister of State's answer to Deputy Owen's question about whether discussions have taken place with the controller?
Discussions would have taken place with the controller at departmental level but not at ministerial level.
Are we allowed to know what was the controller's response?
He has not responded. Discussions are ongoing on this issue.
This legislation will be law in three to four weeks. Is the controller ready and waiting to implement it? What is the position? We should not allow a situation where, on 1 or 2 June, or at some time in the next six to eight weeks, this unfortunate controller is landed with this legislation without any additional resources to implement it. Can the Minister of State reassure us that something is happening?
I hope we can make some improvements with regard to the controller's jurisdiction. When the Bill is concluded, the discussions will attempt to quantify the needs as regards resources. That has to be a major factor. We will put the legislation in place. However, quantifying the resources needed is an ongoing issue which I would like to see finalised.
Amendments Nos. 145a and 145b are related and may be taken together.
I move amendment No. 145a:
In page 176, between lines 42 and 43, to insert the following subsection:
"(3) Any arbitrator appointed under this section shall deliver his or her award within a reasonable period of time.".
Section 348(2) states, "The Controller shall decide whether or not to refer a dispute to arbitration no later than 3 months after the dispute has been referred to the Controller.". I have no problem with this provision as it stipulates the time period within which the controller will operate. The problem arises in that a dispute referred to an arbitrator could take another six months, two years, three years or whatever; we do not know. There is no limit on the amount of time the arbitrator can take. The point of arbitration is that it involves a reasonably open ended period, but I am concerned about not inserting a provision in the legislation which confines the arbitrator to making his award within a period of time. Amendment No. 145b is really more appropriate. Having considered amendment No. 145a, I feel that the phrase “within a reasonable period of time” is a little loose and might not be exact. Having complained before about inexact language, I think the amendment, which states that the arbitrator “shall make his award within three months of the reference from the Controller or within such further extension of time as might be agreed with the Controller”, leaves people, who are subject to the controller and the arbitration system, with some idea of when the matter will be decided. If it is open ended and there is obligatory registration on licensing bodies, the licensing body could be left in a limbo if something is going on for six months, a year or two years. That is a question the answer to which I do not know. While this is happening, in the case of a dispute, where there are bodies which are registered and where the nature of the dispute challenges even the registration of that body, do they stand unregistered or inoperative during the period of that investigation? That is why it is important to have some kind of deadline. We all work better to deadlines anyway.
There is practical experience of this. The current dispute is in the hands of an arbitrator. I do know the reason it is going on - I get a different reason from everybody - but the truth is it has been with the arbitrator for some considerable time and a decision has not been reached. Therefore, having a time limit of three months on the controller and then giving the arbitrator an open ended period seems nonsensical. I hope the Minister of State will be able to see his way to accepting the spirit of both amendments or something along those lines. Amendment No. 145b is a better amendment than my amendment No. 145a.
I am happy to accept the spirit of people's suggestions. Amendments Nos. 145a and 145b appear to be alternatives, as the Deputy said. We appreciate the motives behind these amendments, especially in view of the difficulties currently in evidence in the arbitration arrangement in the Copyright Act, 1963.
As far as amendment No. 145a is concerned, my advice is that an amendment on these lines would not be likely to produce much effect and could even complicate the operation of copyright arbitrations by introducing an element of uncertainty, specifically as to what represents a reasonable time in cases which may differ widely.
It is full of the word reasonable.
What was it the Deputy was saying earlier about "substantial"?
The Minister is being hoist with his own petard.
On amendment No. 145b, which was received by my Department yesterday, the Deputy will obviously appreciate that I have not had much time to consider this fully, although we did make some inquiries with the law reform division of the Department of Justice, Equality and Law Reform. That division advised that specific restrictions of this nature on the time permitted to arbiters to arrive at their findings are not a feature of Irish or international arbitration law.
I am not clear how such a provision would interact with that contained in the Government's amendment No. 146, which would permit the controller to apply to the court for the removal of arbitrators who proceed unreasonable slowly. Considering the position which has emerged regarding arbitration under the 1963 Act, the Deputies will appreciate that I view this extension of the controller's legal powers as very important. Shortly I will move amendment No. 146 and I will give my views on that when we come to it.
In view of the considerations I believe I need to take legal advice on this matter with the view to seeing, in particular - to come back to the Deputy's comment on the spirit of her amendment - whether some combination of amendments Nos. 145b and amendment No. 146 would be useful or possible. I cannot give her a specific commitment on the outcome of those considerations because we received a copy of the amendment only last night. In the meantime, I would be grateful if the Deputy would not press amendments Nos. 145a and 145b.
I will withdraw amendment No. 145a because amendment No. 145b is more appropriate. When I tabled amendment No. 145a I thought I was arguing against myself by providing for “a reasonable period of time”, which is not terribly exact. I am glad the Minister of State accepts that and perhaps he will accept the spirit in which I have qualified a number of the sections which contain the same inexact language. That is why amendment No. 145b is a more appropriate amendment.
I fully accept that the concept of arbitration generally is not something which one should try to control too much but if it is not legally impairing to "the Arbitration Acts, 1954 to 1980 (as amended)", as stated in amendment No. 146a, then I strongly urge the Minister of State to see if he can make some such provision. As he is not taking up our suggestion of a tribunal, he had better make the controller system work. If he manages to make the controller system work, it may then fall into a black morass because arbitration will be open ended and the arguments will continue indefinitely. People could purposely keep the arbitration section of the system going indefinitely. One could find somebody who might not like what is likely to emerge from the arbitration and that person could keep it going. For instance, somebody could wait six months to deliver documents or a year to make a statement. A person could go away on holidays for another six months. Does the Minister of State understand my point, that it is an open ended system and we know from experience that it is not working? I will not push the amendment to a vote but I hope the Minister of State will come back with something which may be combined with his amendment.
I can see the benefits which could arise from time constraints.
Deputy Owen is weakening. It is the first time I have seen this in many years. She is conceding the point far too easily.
I am not conceding amendment No. 145b.
With due respect, what the Minister of State read out does not make a great deal of sense. Given what we know, the notion that it should be open ended is an appalling vista.
When the Deputy hears amendment No. 146, it will help. Chairman, am I allowed to give my response to that?
If you think it would be helpful, you are more than welcome to do so.
The reason for amendment No. 146 is as follows. Neither the Arbitration Acts nor the Copyright Acts give the controller the power to intervene where an arbitrator, appointed to adjudicate a copyright licensing dispute within the jurisdiction of the controller, fails to act with due dispatch. Having considered this matter in the context of our earlier discussions during the course of this Bill, I am of the view that the controller should be given this power to ensure the expeditious hearing of licensing disputes. Accordingly, I am proposing this amendment which will mean that the controller will have the power to apply to the court for the removal of dilatory arbitrators appointed to conduct section 384 arbitrations and to make new orders for the appointment of a replacement arbitrator should this prove necessary. I thank the Deputy for allowing me to put that on the record.
As I said earlier to Deputy Owen, I will look at the amendment which I just received from Deputy Owen to see if we can combine amendments Nos. 145b and 146. I cannot make a specific commitment to that effect but we will see if we can usefully combine what she wants to achieve with my amendment. I was anxious to let the Deputies know what we have in mind also.
That is helpful.
I am still puzzled. I would like to see some statement. The Minister of State said he consulted the law reform section of the Department of Justice, Equality and Law Reform, and it has advised that the kind of restriction suggested by Deputy Owen is not part of our arbitration law. I would like to hear that case argued because it is extraordinary if there are no parameters. It is not adequate to say the controller may apply to the courts to remove an arbitrator. That is a drastic step and similar to applying to the courts to remove a judge. To have resort to the courts on a dispute such as this in any event seems to me to be undesirable.
If we are introducing legislation to modernise copyright law, there ought to be a disputes resolution mechanism which works. The notion that the only discipline that might be exercised is that the controller may apply to the court for the removal of the arbitrator seems pretty drastic. This presumes the controller in all cases would feel enabled to function in that fashion. It is a very unsatisfactory resolution to what might be a real problem. The prospect for wasteful litigation seem to be almost endless, given the experience of litigation becoming bogged down, going on for years and the inadequacy of the present system. I do not see how we can put ourselves forward as refurbishing or renovating the law in this area while not dealing with this point.
Deputy Owen's amendment in relation to the three month period may be quite unreasonable. She is not making an absolutist argument in this regard - it may be six or nine months or whatever else. The Minister of State argued the property rights dimension of this legislationab initio. I have been happy to leave that in his capable hands, while on occasion inserting a social dimension into the legislation, admittedly without much effect. It is extraordinary that he is leaving open a position where someone who feels genuinely aggrieved could become bogged down in the disputes resolution and arbitration system. This person might be out of business by the time the matter is resolved. This is a very unsatisfactory aspect and amendment No. 146 does not address adequately the point advanced in amendment No. 145b.
I thought the Minister of State's amendment might go some way towards putting a cap on the amount of time an arbitrator can be in place. However, in his explanation he gave the reason a controller could use the power under section 24 of the Arbitration Act, 1954, but this is not stated in the legislation. He said they shall have the power if there is a dilatory attention to duty. This is very open-ended and I am worried about the amendment for reasons other than not taking on board the spirit of what I have asked for in my amendment. This gives the controller the power under section 24 to remove an arbitrator, not because they are taking too long but for any reason. The controller might not like the arbitrator or might think the wrong arbitrator had been employed because the controller does not like the way in which the work is being carried out or the public statements made about a lack of resources or the awful job the controller is doing. The power being given to the controller is not stated. If the reason is anything other than dilatory action, one could be in trouble, because this is not specified in the legislation.
The Minister of State understands the point we are trying to make that there is a need for control. Subsections (4), (5) and (6) relate to an appeal to the High Court and the Supreme Court. This could be a very long drawn out process if there is not a cap on the timeframe. This is why I did not arbitrarily say it should be three months. If there was a holiday period within the three months, perhaps an extra month could be allowed.
A discipline must be put on the system. I do not believe the law reform section of the Department of Justice, Equality and Law Reform is saying this cannot be done - it is just saying it is not done normally. If the Minister of State said that section X or Y of some or other Act says no control or limit should be placed on the work of an arbitrator, then he would have a case, but he did not quote any section of an Act.
The removal of an arbitrator would be carried out under the Arbitration Act, 1954. Amendment No. 146 gives power to remove the arbitrator under section 24 of the Arbitration Act, 1954. This was my initial response to the question of time limits, reasonable periods, etc. I will request definitive legal advice from the Attorney General's Office. I give a commitment that I will seek to marry the Deputy's amendment and my amendment and I will come back to her on the issue. I can see the merit in the Deputy's case.
I will table amendment No. 145b again.
I move amendment No. 146:
In page 177, between lines 10 and 11, to insert the following subsections:
"(7) In any reference to an arbitrator under this section, the Controller on notice to the parties to the dispute shall have the same power to apply to the court for the removal of that arbitrator under section 24 of the Arbitration Act, 1954, as if he or she had been a party to the arbitration.
(8) Nothing insubsection (7) shall affect the rights of the parties to the arbitration.
(9) For the avoidance of doubt, in the event of an arbitrator being removed undersubsection (7), a second or subsequent arbitrator may be appointed to arbitrate the dispute in accordance with this section.”.
Under the Arbitration Act, 1954, is the removal power being given to the controller only in the case of dilatory action or is it more open-ended?
The legislation states "if the arbitrator does not act with due dispatch"
Is the Minister of State confirming that the only extra power he is giving the controller to remove an arbitrator is if he or she has not acted with due dispatch, that it has nothing to do with whether they like what they are doing?
That is my advice. It is important to see how the Deputy's amendment fits with the one in my name and that is why I have made a commitment to look at it.
It is concerned with the judgment of the controller as to whether he has acted with dispatch or not. If the controller took two or three years to act he would take a very broad view of the arbitrator lapsing on that aspect. Is that not the case?
He could not be critical if he took two or three years. There is a provision for a three months control on the controller. That is why it is so important. The legislation will place a discipline on the controller and he will not be able to operate with gaps of two or three years. The problem is that it opens up matters for others.
I move amendment No. 146a:
In page 177, between lines 10 and 11, to insert the following subsection:
"(7) An arbitration undertaken under this section shall be governed by the provisions of the Arbitration Acts, 1954 to 1980 (as amended).".
The purpose of the amendment is to provide clarity. Section 348 does not refer to the Acts under which arbitration will be undertaken. I hope the Minister of State will accept this technical amendment. Reference is made to an arbitrator but there is nothing in the Bill to bind the work of the arbitrator to any legislation. That is why it is necessary to refer to the provisions of the Acts set out in the amendment.
What shall govern the work of the arbitrator?
My advice is that the application of the Arbitration Acts to arbitrations under other statutes is already secured by the terms of section 48 of the Arbitration Act, 1954. If the Deputy wishes, I can obtain confirmation from the Office of the Attorney General.
Is the Minister of State saying it is not necessary to cross-reference in the Bill the powers of the arbitrator?
It is not necessary to do that. There is a general clause in section 48 of the Arbitration Act, 1954, covering that.
Does that set down the rules under which this arbitration will take place?
Is the Minister of State also saying that current arbitration work is covered by that legislation?
I will take the Minister of State's word for that because neither he nor I has the relevant legislative provision before us. However, I would like him to accept the amendment.
I can check the matter with the Office of the Attorney General and, if necessary, I will accept the amendment.
I will withdraw the amendment on that basis.
This is an unusual provision. The Attorney General is the law officer to the Government not, as I understand it, to various quangos or agencies of the State. I am not sure about the desirability of the provision. Without reflecting on the present controller, a controller could turn the Office of the Attorney General into the office of the controller. Every time a problem arises under the legislation - that may not be infrequent - the controller could decide to refer the matter to the Attorney General who could then be required to make the decisions here. I am not sure we intended to provide that implementation of the legislation will be a matter for the Attorney General. It is unusual.
It is not unusual. There is a similar provision in section 42 of the 1963 Act. Section 349 states:
The Controller may, in any case of doubt or difficulty arising in connection with the administration of any of the provisions of this Act, apply to the Attorney General for advice in the matter.
This is not a quango. The controller is a civil servant within the overall Ministry, so in that sense the provision is not unusual.
Given that he is a civil servant, why include the provision? We deal with civil servants every day of the week but we do not provide in legislation that senior civil servants or the Secretaries General of Departments shall have the right to ask the Attorney General for advice.
It could be argued that section 349 allows the Attorney General to override the controller and arbitrator and advise differently, following which appeals may ultimately be made to the High Court and the Supreme Court.
This is a normal provision in the context of this type of legislation and there is a similar one in the 1992 patents legislation.
I move amendment No. 147:
In page 177, subsection (2)(a), line 36, after “measures” to insert “for infringing purposes”.
Is the Minister of State inclined to accept this amendment? There appears to be a lacuna in the legislation in that there is no requirement to make specific reference to "for infringing purposes".
If I recall correctly we are getting legal advice on this.
The case has been made to us that the words "for infringing purposes" should be included.
It is now approximately 4 o'clock, the time we agreed we would review progress. There is not much remaining and it is suggested we suspend until 5 o'clock, as we agreed last week. I hope we might finish our deliberations then. It was agreed last week that we would not go beyond 6.30 p.m.
We will try to finish at 6 o'clock.
Or earlier. I have another meeting after 6 o'clock.
These sections deal with technological protection measures, listening devices etc. Do some of these anticipate the directive on copyright? Are these sections enabling and will they have to be amended when the directive is finalised? If so, how will this be done in some areas yet not in others - on the basis ofdroit de suite or in providing for a tribunal?
Obviously there is protection in place at the moment. These sections honour the terms of the WIPO 1996 treaties. We are not anticipating the contents of the copyright directive. Further legislation will be required to deal with that.
These sections are necessary and none of them is anticipatory.
No. From a technological point of view they may be as we are dealing with legislation which is, in many ways, outdated. As the Deputy is aware, in this legislation we have had to deal with technological changes which have emerged but with some difficulty. In the area of technological protection measures, there has been speculation about what may happen in the future. Some of the developments may concur with the legislation but we speculate that further legislation will be required. However, we are not in a position to implement measures which we can guarantee will deal with technological developments in the next five or ten years. I believe we will need further legislation when the copyright directive is finalised.
In our earlier discussions, we spoke about the need to introduce modern legislation to allow for developments since 1963, when video recorders did not exist. In that context, it is important that further legislation is introduced in the future.
I move amendment No. 148:
In page 179, before section 354, but in Chapter 1, to insert the following new section:
"354.-Nothing in this Chapter shall be construed as operating to prevent any person from undertaking the acts permitted-
(a) in relation to works protected by copyright under Chapter 6 of Part II,
(b) in relation to performances, by Chapter 4 of Part III, or
(c) in relation to databases, by Chapter 8 of Part V,
or from undertaking any act of circumvention required to effect such permitted acts.".
It is necessary to put in place a legal foundation for the use of rights protection measures, for example, encryption, to the extent that this required by current international law. The intention of this amendment is to ensure that the existence of the provisions on rights protection measures cannot be read as overriding the exceptions to copyright performers' rights and rights in performances and the database right contained in other parts of the Bill. The question of the proper relationship between technological protection measures and the exceptions to copyright is currently under examination at EU level in the context of the proposed directive on copyright and the information society. I will be keeping this matter under review.
I move amendment No. 149:
In page 179, subsection (1), lines 31 and 32, to delete ", without his or her licence".
This is a technical amendment which aligns sections 354 and 355.
I am not sure why those words are being removed.
It is true that the sections are aligned.
Obviously they should not have been included initially.
We are now intrigued as to why.
It was an error in the drafting. This is a technical amendment.
The word "technical" is being used because the Minister of State cannot explain it. What does aligning the sections mean?
My understanding is that this amendment was advised by the Attorney General. It technically brings the Bill more in line with the treaties.
I move amendment No. 150:
In page 181, subsection (2)(a), line 13, to delete “6 months” and substitute “12 months”.
This is a technical amendment which brings the level of penalties in this section in line with the penalties contained elsewhere in the Bill.
Amendments Nos. 151 and 152 are related and may be discussed together by agreement.
I move amendment No. 151:
In page 181, before the First Schedule, to insert the following new section:
"356.-The amendment of the Act of 1927 effected by section 59 of the Copyright Act, 1963, which amendment is set out for convenience of reference in the Table to this section, shall continue to have effect notwithstanding the repeal of the said section 59 by section 10.
Section 70 of the Act of 1927 is hereby amended by-
(a) the substitution in subsection (2) of ’before the expiration of a period of five year and six months from the date of such registration’ for ’within the prescribed time before the expiration of the said five years’, and
(b) the substitution in subsection (3) of ’before the expiration of a period of ten years and six months from the date of such registration’ for ’within the prescribed time before the expiration of such second period of five years’.”.
My memory of the purpose of this is that a very small part of the 1963 Act will remain extant as a result of the manner in which the Bill is constructed. If the Minister accepts the wording I have proposed, this section would be included in this legislation and we could consign the 1963 Act to the dustbin of history. I am curious why we did not do it this way - it seems to me to be a great deal neater. I set out the section contained in the 1927 Act in the table. Why keep the 1963 Act? Did someone have an affection for it and decide that it should remain?
We are doing what Deputy Rabbitte would like us to do. Amendments Nos. 151 and 152 represent an alternative approach to preserving the affect of a transitional provision in the Industrial and Commercial Property Protection Act, 1927, which deals with industrial design. This is a purely technical matter. This section deals with transitional measures dealt with by the Attorney General's office. The current text of the Bill defers the repeal of section 59 of the Copyright Act, 1963. Page 194 states that the entire 1963 Act is to be repealed with the exception of section 59 - so that is the way we are doing it - which continued the effect of the same provision of that Act, pending the introduction of new legislation on industrial design in the near future which will finally tidy up the situation and allow section 59 of the 1963 Act to be repealed. That is when the 1963 Act in its entirety will be confined to the dustbin. We are advised by the Attorney General's office that the present text of the Bill would achieve the required result effectively and with greater economy, avoiding as it does the need to enact a section to the current Bill which would certainly fall to be repealed in the near future in the context of new design legislation. I obviously prefer the way we are doing this and the Attorney General's advice is in agreement with that approach——
With all due respect to the Minister of State and the Attorney General, what the Minister of State has read out is a description of what he is doing, but regarding reasons for shooting down my amendment in favour of his own, there is none except that there would be greater economy by not framing this in the Bill. If one thinks about this, economy does not come into this Bill, but if it did, putting in an additional section such as I propose is not a matter that is uneconomic. In other words, why are we retaining one small section of the Act in existence? I do not understand.
I do not think there should be a major problem with this. The Attorney General's advice——
I am not suggesting it should be a major problem. Let us go to Part I of the Second Schedule. Why should that not read "entire Act" rather than the "entire Act other than section 59"? Why are we retaining section 59 in its current form?
Because that section relates to design legislation and there is another section within my Department dealing with this legislation. The heads have been prepared, approved by Government and it has gone to the Attorney General's office. We hope to publish that Bill soon. My approach looks tidy up there on the right hand corner of the last page of the legislation - "entire Act other than section 59". It does exactly what the Deputy suggests——
Rather than the word "economy", I could use the term neat and tidy.
I agree that it achieves the same thing, but if I am a copyright lawyer, why do I have to go back to the Copyright Act, 1963, for this matter when we can enshrine it in this Bill? Whoever researches this would have one less Bill to search.
The Schedule states the "Act other than section 59", but how does that tie in with some other sections, such as page 189, which has a number of references to the 1963 Act continuing to apply in relation to infringements committed before such commencement? If the whole Act has been repealed, how can it continue to apply, such as in the subsection dealing with remedies for infringements? Is the Minister of State saying that the whole Act is not automatically repealed when this Act is passed?
When we commence the new Act these will be repealed. Those measures referred to by the Deputy on page 189 are transitional measures.
No they are not. If one looks at page 189, it states that sections 126 and 128 shall apply to infringing copies, articles or devices made before or after the commencement of Part II of this Act and that section 24 of the 1963 Act shall not apply after such commencement. That is fine except for the piece added in - except for the purposes of proceedings initiated before such commencement. In law, if one has repealed the whole Act except section 59, how can section 24 of the Act continue to apply for the purposes of proceedings initiated before such commencement?
If an action has proceeded under the old legislation, one obviously needs transitional provisions. All these measures have been put inserted on the advice of the Attorney General——
It says nothing about this being transitional.
Is the Deputy referring to section 23(2)?
Or any of these sections; they will continue in place and will be quoted in court. Is the Minister of State saying the whole Act will not be repealed?
If we could stay with Deputy Rabbitte's amendment——
It is the same point that needs to be clarified.
I know it is the same point but rather than skipping pages, in fairness to Deputy Rabbitte, we should deal with amendments Nos. 151 and 152.
The First Schedule, Part I, is headed "Transitional Provisions and Savings", so everything relates back to that.
Does it mention section 59? No, because it is not transitional.
It is transitional because you will get rid of it when the new design Bill is brought in.
As far as I am concerned, Deputy Rabbitte and I are at one; we want to ensure that section 59 stays in place until we get new legislation. I am suggesting that the way I have decided to go about this is as good as Deputy Rabbitte's. I do not think there is a major argument there.
I am in Opposition and Deputy Kitt is the Minister of State; that is probably the main point. I am not going to make a song and dance about this as the Minister of State's view will prevail. However, the Attorney General should be written to and asked whether he considered amendment No. 151 or if there is explicit advice on that, as distinct from on the merits of the Minister of State's version. I cannot see the point of keeping an Act in existence that has been repealed apart from this section, which would then be enshrined in this Bill. The amendment to the 1927 Act, for the sake of ease of reference, is repeated in my table. I am not going to make a song and dance about this; I think it would be neater and in years ahead, when researchers are going through this, that they will acknowledge my foresight.
It is interesting to note that the principle of the Deputy's desires is being contained anyway.
A propos of nothing at all - and the Minister of State can deal with this on Report Stage - have we omitted to deal with the duration of copyright of photographs?
Some photographers have expressed concerns about the legislation and I would be happy to meet with representatives of that group in the next two weeks. As in every area, I want to try to give those particular individual artists and rights holders an opportunity to voice their opinions to me directly.
While we are on the Minister's appointment diary——
I am sorry, Deputy Owen. To finish that point in terms of complying with procedure and leaving the facility open to raise this matter on Report Stage, I just want to record it in the context of a possible Report Stage amendment.
I recently received a letter from another group that certainly was not on our list of 16 that came in, a group called RAAP. This is a new group which has formed on behalf of the performers. Their rights are subjugated in this legislation and I want to raise that in case the Minister might be able to consider their case. I do not know whether anything can be done. I think they are worried somebody might be collecting their money; the Minister might have an overall look at the registration aspect.
We have ploughed through this together and I would be more than happy to look at any submissions on the legislation that comes to the attention of the Opposition spokesperson. Perhaps Deputy Owen can refer their submissions to me or my Department.
What Schedule are we on?
The Second Schedule.
You ran by that, Chairman. You cannot do that.
Ran by what?
The First Schedule is about five or six pages.
We dealt with it.
No. The Minister gave a commitment that he would come back to me on Part VI of this Schedule. It refers to page 193. He was going to explain what Part VI meant in terms of the databases.
I have asked my officials to examine this matter in the context of what the Deputy said earlier. It follows what the United Kingdom did in its legislation. If the Deputy wishes, my officials can consult the Attorney General's office and report back to her directly.
The reason I ask is that Part VI, 45. (1) states:
Where a database -
(a) was created on or before the 27th day of March, 1996 . . .
Subsection (2)(a) refers to the making of a database completed on or after the first day of January, 1983, but before 1996 and after 1983 is the same period of time. What is the difference? If I said I created it on 27 March 1984, that is before 27 March 1996 and it is after January 1983. Why are there two different conditions? One will be allowed to keep the database for the remainder of its copyright term and the other will be allowed to keep the database for the period of 15 years from January 1999. It would be better to claim that one created it on or after 1 January 1983 rather than saying it was created on or before 27 March 1984. I do not understand that.
This is like the penultimate fence in the Grand National and I have to tell the Deputy that my officials will need to check that. They cannot remember the reason we did this - that is being very transparent.
I cannot believe it.
We will get the information. The Attorney General's office was primarily involved in much of this. It is easing in transitional provisions so we will have to——
Does the Minster follow the point I am making?
I do indeed.
They are both the same period of time.
There must be some good reason for that so we will have to revert to the Deputy on it.
We had just agreed that the Second Schedule be a Schedule to the Bill.
Amendment No. 153 has already been discussed with amendment No. 106.
I move amendment No. 153:
In page 194, after line 22, to insert the following new Schedule:
1. The agreements, treaties and conventions which shall be reckonable for the purposes of extension of qualification of copyright protection to works under the provisions ofsection 178 of this Act shall be:
(1) Berne Convention for the Protection of Literary and Artistic Works, as revised at Paris on July 24, 1971 and amended on October 2, 1979.
(2) Universal Copyright Convention, as revised at Paris on July 24, 1971.
(3) EEA Agreement.
(4) Agreement on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods.
(5) International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on October 26, 1961 - in respect, only, of matters addressed by Article 5 and Article 6 of that Convention (see paragraph 2, below).
(6) World Intellectual Property Organisation (WIPO) Copyright Treaty, adopted by the Diplomatic Conference at Geneva on December 20, 1996.
(7) World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty, adopted by the Diplomatic Conference at Geneva on December 20, 1996.
Qualifications on application
2. In respect of the Convention specified in paragraph 1(5) of this Schedule, of section 178 and this Schedule shall have effect in respect of matters addressed by Article 5 and Article 6 of that Convention, only.".
Can the Minister explain the reason that is being put in?
I think that was a decision on the national treatment as distinct from world treatment in respect of this matter. This amendment was grouped with many other amendments, so it is the same argument.
I am advised that amendment No. 154 is consequential on amendment No. 100 which involves a potential charge on the Exchequer. Accordingly, amendment No. 154——
I knew you would find a dagger to drive through my heart on the very last section of the Bill, that you would not give me my crowning moment. You are very mean, Chairman.
I would be delighted to accommodate any Deputy, particularly yourself, Deputy Owen. My personal preference would be to accommodate you but the Clerk and all the people who work in those dark rooms give me these notes and tell me that, unfortunately, I have to rule it out of order. I regret that, Deputy.
I accept your ruling because I have little or no choice in the matter. It might interest you to know, Chairman, that somebody kindly did a little task for me by going through the legislation line by line to see what new responsibilities the controller was being given, and I have counted 64 new jobs for arising from this legislation. I can give all the numbers of the sections and it is mind boggling what the controller will have to do. I say this in relation to the amendment that has been disallowed because I believe the Minister should consider some sort of joint position where a controller would be part of the tribunal. Will the Minister conclude the meeting by telling us the number of staff the controller has working on this on 18 April 2000?
Currently there are about 80 or 90 members of staff working on it.
What do they spend most of their working day doing? Are they working on patents and trade marks rather than on copyright?
Patents and trade marks registration would be——
Is the biggest area?
So the Minister is going to give them more work to cover these 64 new powers?
May I ask about the last phrase "and to provide for related matters". What is the Attorney General's advice on that wording given that he refused permission to put in something that gave the Minister too much power? Surely the phrase "and to provide for related matters" means that anything can be put into the Long Title, even thedroit de suite.
We could. I look forward to dealing with thedroit de suite aspect The phrase “to provide for related matters” is standard language used in this type of legislation. There may not be any related matters. That phraseology covers all related matters.
I thank the Minister of State, his officials and the Clerk and members of the committee for their input into today's meeting and previous meetings. This is our eleventh meeting to deal with Committee Stage of this Bill. That reflects the substantial progress we have made on this complex legislation.
I pay tribute to the Opposition members who made strong presentations, without adequate supports, on the amendments they tabled. In that regard I pay tribute to Deputies Owen, Rabbitte, Stanton and other members who participated. This is an exceptionally complex technical and legal Bill, as evidenced by the detailed work done on the Committee Stage.