I move the deletion of the section, not, I am afraid, in the hope that the amendment will be accepted, but to ask the House to consider seriously the arguments by which I wish to support the amendment. I referred to the matter on the Second Reading, and then my arguments were cut somewhat short by the intervention—the quite courteous intervention—of Senator Brown, who suggested that I was misinformed. I have since had a conversation with the Senator, and I think he will agree now that I was not misinformed, and that the case I stated was correct.
Copyright (Preservation) Bill, 1929—Committee Stage.
Sections 1, 2 and 3 put and agreed to.
SECTION 4.
Notwithstanding anything contained in this Act, no remedy or relief, whether by way of damages, injunction, costs, expenses, or otherwise, shall be recoverable or granted in respect or by reason of an infringement in Saorstát Eireann before the passing of this Act of a copyright by this Act declared to subsist or deemed to have subsisted in Saorstát Eireann.
I was the person misinformed. I stated on the last occasion that I understood that the case which was on appeal to the Privy Council was not going on. I did so hear, and I understood that it was not going on, but was merely adjourned.
The whole difficulty covered by this Bill is concerned with copyright during what has been called the interregnum period—between the Treaty and the passing of the Act of 1927. I think I am right in saying that it was the intention and the wish of the Government that British copyright should be effectively preserved in the Free State during that interregnum, and that that should be effected by the Act of 1927, but apparently, owing to some mistake in drafting, that was not effected. The High Court ruled that it was, but on appeal to the Supreme Court that ruling was reversed. The object of the present Bill, therefore, is to put that right, and in future the law will be as it was at first hoped, and copyright during that period will be protected. An action was taken by a society known as the Performing Rights Society against the Bray Urban District Council for infringement of copyright. As I have said, the High Court upheld the Performing Rights Society, but the Supreme Court reversed that. The Performing Rights Society is an international society which acts on behalf of most of the leading authors and music publishers all over the world, certainly in Great Britain. Exercising its powers under Article 66 of the Constitution, it applied for leave to appeal, and in due course the leave to appeal was granted. My information is that it was granted largely on the grounds that this was not a domestic issue and in no way similar to the Lynham and Butler case, which provoked similar legislation which was sought to be defended on the grounds that it was a purely domestic issue. I do not think that there can be any doubt whatever that this is wider than a domestic issue.
The effect of Section 4, which I seek to delete, would be that no appeal could proceed and the Performing Rights Society which, I am informed, has incurred costs of well over £1,000 would be prohibited from exercising its right under the Constitution, and, presumably, would have to suffer a loss to the extent of those costs. I do not suggest that to a wealthy society of this kind—I imagine that it is wealthy—that sum is a very important matter, but the principle is very important. During the debate on another Bill we heard arguments advanced as to the sanctity of the Constitution in reference to the national language. I rather suggested that another opportunity would arise for testing the feelings of this House as to the sanctity of the Constitution, and here is the opportunity. This body has a perfectly constitutional right to prosecute their appeal under the Constitution. That right is now being taken away by Section 4, and I suggest that we are acting wrongfully and unwisely and are damaging our national prestige for fair dealing in the action we now propose to take.
It may be argued that this Society is better able to stand these costs than the Bray Urban Council. I suggest that that has nothing to do with the case at all. It is dominated entirely by the principle of whether a citizen or a litigant who has a right granted to him by the Constitution should proceed to exercise that right without the interference of a retrospective Act of Parliament. It may be argued why should the Performing Rights Society proceed at all in this case, knowing full well that legislation would shortly be introduced to put matters right? I suggest that it had no information whatever that legislation would be introduced. It had a knowledge, or it should have had a knowledge, that the intentions of the Government were entirely in its favour. There is a further argument, if such were necessary, that the intentions of the Government were in its favour, because I understand that the Attorney-General appeared in person at the hearing of the application for leave to appeal and argued in favour of the contention of the Performing Rights Society. I am open to correction if that is wrong. On the other hand, Senators might argue that as the damages in this case would be merely nominal why should the Bray Urban Council have proceeded to appeal? I have no doubt that if they had to pay damages, which is doubtful, and had submitted to merely nominal damages, nothing further would have been heard about the matter.
Except for the £700 costs.
No, they had not been incurred at that stage. The costs were incurred by the appeal to the Supreme Court, which was taken by the Urban Council and not by the Performing Rights Society and, further, the application for leave to appeal to the Privy Council, which, as we all can imagine, knowing what lawyers' charges are, is a very costly matter. I suggest that, if the Government wish to satisfy the equities in this case and to avoid what I submit is a very humiliating position, they should at least not deprive this body of an opportunity to exercise its rights under the Constitution, and if they offer to pay the costs of the Performing Rights Society, I have no doubt everything would be all right, because in future, as we all know, the Performing Rights Society would be secure. Therefore I move my amendment, and I would like to hear what the Minister has to say about it.
Like every lawyer, I have a rooted objection to retrospective legislation. The first instance of it that we had was in connection with an appeal under a Land Act, and the legislation which prevented that appeal was, I think—I am speaking only from my own recollection of it—really intended to raise the serious question as to whether an appeal of that kind, on a matter of our own domestic law, ought to be allowed to go to the Privy Council. That was the excuse for taking that action. The present case is not like that at all. It is a very curious case, because as far as our wisdom went we thought we had provided for the continuance of copyright in the interval between the Treaty and the passing of our own Bill that dealt with copyright. We thought we had done that, in the wisdom of both Houses, and I say I still think we had done it. However, that is neither here nor there; the Supreme Court has decided otherwise.
The situation as to restropective legislation in the present case is this: It is really not a question of principle; it is a question of hardship and commonsense. Admittedly, in this case there is no real damage; it is only a few shillings. The real question is this very large sum of taxed costs. I do not think that my friend, Senator John Keane, is right in thinking that the bill tots up to £1,000 for what we call party and party costs, but it is a very substantial sum. Surely, therefore, it would be a hardship on this Society if it had to pay its solicitor's bill of costs, and if it had to pay, not only party and party costs, but solicitor and client costs, which are very heavy. That is an admitted hardship. On the other hand, I understand that there are ten or fifteen small actions for similar sums of a few shillings in each case which have not been proceeded with yet, and which are not really of very much importance.
What I think the Government should do in this case is to consider whether they can divide the hardship or provide against it in any way, and the conclusion I came to is that, on the whole, it would be better to let each side bear its own portion of the costs, and as the law was being put right, the question would never arise again. We are bound to put it right, since the Government could not allow this infringement of what they intended to be the law of copyright to go on, and therefore they were bound to introduce this Bill and pass it as quickly as possible. As I say, there must be a hardship one way or the other. They have come to the conclusion, rightly or wrongly, that each side will have to bear its own burden. I do not know whether the Minister for Finance, in a soft moment, would consider the question as to whether the Department of Finance ought to pay these costs or not. However, that is not a question for the House, but for the Minister.
I agree with Senator Sir John Keane. I think it is most unfair that when parties engage in litigation the State should intervene and deprive one party of a farthing of the costs or expenses which they may become entitled to. This is retrospective legislation. It purports to affect the rights of parties who have already incurred expenses and costs. The costs and expenses incurred are a definite and ascertained sum, and if the State intervenes to prevent one party from succeeding, I think in all justice, when the amount of the loss has been ascertained and is a fixed sum, it ought to intervene on principles of fair play. The Minister for Industry and Commerce is here. He is directly concerned in this Bill and in the general principles involved, and as we have also the Minister for Finance present, I think it ought not to be impossible in the present case for them to indemnify the persons to whom Senator Sir John Keane has referred. They are only a few, the sum is very small to the State, but it is a serious thing for the individuals whose rights or whose chance of success and of getting their costs of this expensive litigation are to be taken away by this retrospective legislation, and it is certainly a thing that ought to be considered by the Seanad. If we do it at all, we ought to do it in a large and generous way, and be perfectly fair to individuals. We should not introduce legislation for penalising individuals and deprive them of their chance of recovering costs by reversing a judgment. I think something ought to be done by the two Ministers, who are here, on the lines suggested by Senator Sir John Keane.
I share Senator Brown's objection to retrospective legislation, but apparently this is a distinction with a very important difference. There is no doubt whatever about it that we did intend our legislation to cover these cases. Apparently, through a fault in the drafting of the Bill, our intention was not carried out. But in addition to that, it seems to me from what has been said by Senators who are in a position to know, that an injustice is to be wrought upon some litigants. Unless the Minister for Finance or the Minister for Industry and Commerce puts forward something to change my view, I shall certainly support the amendment.
Senators speak of an injustice to litigants. What about the injustice to the nationality of this country? Why should our Supreme Court be liable to have its decisions reversed by an outside authority? The law is there. As I said previously, when that law was passed it was never the intention to permit appeals to the Privy Council. Our position was to be based upon the law and constitutional practice of the Union of South Africa. If anybody was in doubt, the proceedings that took place on the Land Bill ought to have made all and sundry know that this country is an autonomous State, equal in status to and in no way dependent on any other State, whether in its external or internal affairs, and its Supreme Court ought not to be superseded by any outside court. When a gentleman representing the Fianna Fáil idea stands up and suggests that we should go to England, that we should allow our Courts to be superseded——
On a point of explanation. I said nothing whatever about the rights or wrongs of an appeal to England. What I said was that those people who have incurred expense ought to get some sort of compensation.
Cathaoirleach
It was possible to read what Senator Wilson said into the Senator's remarks.
The Senator knows perfectly well the issue involved. He and the Party he represents here have been standing for the ideal of an independent country, but here he asks the Minister for Finance to tax us to the extent of £1,000. We want to have this country free in all respects, and free in respect of the Courts which we have set up. This economy Party ought not to allow themselves to be led away in this matter. It has been definitely decided by legislation that the Courts of this country are to be final. The Constitution says that they are to be. The prerogative of the Crown is there, but the prerogative of the Crown was put there because we could not keep it out. At the same time, while it is there, it has been agreed between the contracting parties that small cases and cases of this sort should not go to the Privy Council, and that the South African precedent is to be the guiding line.
I speak in this debate, not as Minister for Industry and Commerce, but as Minister for External Affairs on account of the matter at issue being an international one. I am very glad that Senator Wilson raised one question as he did. The prerogative, in so far as it remains in the Constitution, is a matter which must be faced on this point. It was faced on the Land Bill of 1926. At that time, the late Minister for Justice stated that when the Constitution was under discussion promises had been made that the preservation of the prerogative would be very much more a theory than a fact and a practice, and to fortify his view he read a statement made by Lord Haldane, in giving judgment in the first case that ever came before the Judicial Committee of the Privy Council with regard to leave to appeal, in which Lord Haldane recognised that there was an analogy with South African practice. On the matter of leave to appeal, Lord Haldane said: "It becomes with the Dominions more and more or less and less as they please," and the Minister for Justice then said on the Land Bill that as far as we were concerned, it was our pleasure that it would become definitely less and less. He referred to the leave to appeal as being obsolescent, and declared that it was our intention to make it obsolete as quickly as possible. To those who are concerned with the sanctity of the Constitution, I will say this: We will always uphold the sanctity of the Constitution, but it is a matter of public knowledge that we were in debate with the British Government with regard to the Privy Council at two Imperial Conferences. Once was at the 1923 Conference, when the matter was left over. The second conference that dealt with this showed that in so far as it had been left over it was left over in the state in which it had reached the Conference of 1926. It was left just as found—a right of appeal in the Constitution, the extent of that right questioned and limited by the Land Act of 1926, and that legislative effort recognised on the other side as a most ingenious means of preventing any appeal to the Privy Council. We sought at the Imperial Conference of 1926 to get this residue of the prerogative done away with, and our declared intention was to follow the South African example and to make it less and less as time went on, in Lord Haldane's words, until it finally disappeared.
That is one issue raised here. The matter is in dispute. In the meantime it is left in the position in which the Imperial Conference of 1926 found it. We are dealing with this case that has arisen. There has been talk as to the rights of individuals. Senator Sir John Keane said that through some error in drafting the original Industrial and Commercial Property (Protection) Bill, this situation arose. By no means did it arise from any error in drafting of that Bill but from a misunderstanding as to the effect of an Article of the Constitution in gripping certain things which were in existence on the 6th December, 1921. As to whether or not these properties were gripped by the Constitution and carried forward into our statutes there is still considerable legal doubt. That legal doubt has been expressed here to-day. We, however, accept the decision of the Supreme Court as final and that decision proves the law relating to copyright to be different to what we think the legislature intended. In this Bill we are endeavouring to establish the law as we always intended it to be. It has been declared that after a certain date in 1923 copyright did not any longer continue and was not gripped by the Act of 1927. That is the final decision of a Court that we regard as the final authority in legal matters. We accept that. Let us take the Performing Rights Society, about whose costs and damages Senator Comyn is so aggrieved. Supposing we accept the law as laid down by the Supreme Court and refrain from introducing this amending and retrospective legislation. What is going to happen the Performing Rights Society? Not merely do they not get their costs, but the principle and the property for which they are fighting, in comparison with which the costs are negligible, both go by the board. The situation is that the copyright they seek to have upheld cannot be upheld. We are amending the law retrospectively in favour of the Performing Rights Society, and we are doing so, not because of the Performing Rights Society's case, but because it was always the intention of the legislature that there should be no breach in the continuity from 1921 until the Act of 1927 became operative. We were taking up the standard we always took up.
There is another party to the litigation—the Bray Urban Council. What about the situation of the Bray Urban Council? The Bray Urban Council have, in fact, acted in a way which has now been upheld by the Supreme Court of this country, finally as far as we are concerned, as being legal. Why should we penalise the Bray Urban Council? We have to amend the law. We have to make it what we always intended it to be. In the meantime, certain parties have suffered. We say to those who wish copyright to be preserved without break of continuity that since the Supreme Court has decided against them a break is shown to have occurred and their property is, in fact, lost. But to do them the justice we always intended should be done we are amending the law retrospectively to carry forward the property concerned. This question of costs really does not matter to any great extent.
In one part of his remarks Senator Comyn spoke as if the Performing Rights Society was bound to succeed on leave to appeal being granted. It is very doubtful after the analysis made by the Supreme Court, that that decision would be reversed. If there was to be such reversal of decision, that would give the Performing Rights Society the right to the property which they seek, plus costs. We re-establish their right to the property, we cannot give them costs. At any rate, we are not going to have the Privy Council to determine that matter, which is definitely and decidedly a domestic matter. It may be argued that it is not, that in the case of copyright, which has its bearings outside the country, we should be more particular about outsiders rights than about our own. The effect may be international, but the legislation is a domestic question and the amending of it is a domestic question. That is the point.
The Supreme Court has found the law not to be what we intended it to be. How is that to be rectified? Is it by allowing an outside body to decide contrary to the Supreme Court, or to treat the decision of the Supreme Court as final, and to amend the law? This is a domestic matter, pure and simple. It is not a matter in which an injustice has been done to people and that we are refusing to rectify it. We say that we are going to preserve their property for these people. We are going to have that done by legislation. We are not going to have it done by the decision of a Court operating as if superior to our Supreme Court. I would find it impossible, speaking either as Minister for External Affairs, or speaking as the Minister who is responsible for industrial and commercial property legislation, to make any recommendation to the Minister for Finance that he should meet the costs of the Performing Rights Society. I offer the Seanad this Bill in its entirety. If it be accepted by the Seanad that Section 4 be dropped, that these people should have a right to appeal and a gamble for their costs the Seanad may, perhaps, give them that choice but they must also give them the consequences of that gamble. If the appeal fails they will have not merely their costs, but they will also lose the right to their property, for we cannot allow them to pick out the retrospective provisions of this Bill which suit them and discard the single clause to which they have minor objections. If the proposals work any injustice at all it is going to be a very small one, and we have to judge between the two sets of parties—the Bray Urban Council, who went on what they thought to be the law, and who are declared by our Supreme Court to have been acting legally, and the people who also went on what they thought to be the law and who have been declared not to have the rights that they thought they had. We say that as between these two we take the decision of the Supreme Court as final, and on that the costs have gone against the Society. We accept that, but we are amending the law as far as the property is concerned. We give back the right to the property, as we always wished to have that preserved, but we are not giving costs.
After what the Minister has said there is very little hope that the Seanad will delete this section. I would like to make one or two observations on the general principle involved. I have not got my references here, but my recollection is fairly definite on the point with regard to the late Minister for Justice and his opinion as to the Privy Council appeal. In the case of Lynham and Butler I am nearly sure I can substantiate that he said that it stood alone, that there were cases where appeal would be justified, quoting the Wigg-Cochrane case.
We have learned since then.
There is nothing to show that the Wigg-Cochrane case is the only one.
No. I would not say it is.
We have to use our own intelligence as to whether this is a domestic or a much wider question. I suggest to the Minister and to the House that it is most unsatisfactory for a litigant to be in an indefinite position of less and less. If that is the intention of the Government, why not pay the costs, bring forward a Bill, repeal Article 66 of the Constitution, and let people know where they are? But do not allow Article 66 to give people rights, to have them exercise those rights and to incur costs, and then obliterate these rights ad hoc by retrospective legislation.
We gave notice previously as well as we could, of our intention to get rid of the prerogative, or alternatively to let the prerogative remain in the Constitution with the understanding, that the use of it will be less and less according to our pleasure. Warning was given on the Land Bill, and I want again to give the precise warning that people who look for leave to appeal to the Privy Council do so at their own risk.
I think it might be advisable and valuable to the Ministers if they had an expression of opinion from different parts of the Seanad supporting them in that attitude. I, for one, am in hearty support of the attitude that the Minister has indicated, and I am quite sure that those with whom I act are with me.
Of course, I absolutely support the contention that there should be no appeal to any tribunal outside this country, but what I say is: "Finish it now and pay the costs."
That is not consistent.
Amendment put and declared lost.
Sections 4 and 5 and the Title, put and agreed to.
Report Stage ordered for tomorrow, Thursday, 11th July.