This section reads:
A consent to the broadcasting of a performance shall, unless the consent provides otherwise, be deemed to include the consent to the rebroadcasting of the performance.
Rebroadcasting is defined in section 1 as the simultaneous rebroadcast by one broadcasting organisation of a broadcast of another. It covers Eurovision in particular. It also covers simultaneous broadcasting. Probably Eurovision is mainly what is in question here. I mentioned on Second Reading that I was worried about this section. It says, in effect, that if an Irish artiste agrees to do a broadcast for Radio Éireann as far as this Bill is concerned unless there is something in his contract that covers Eurovision there is no legal obligation under this Bill on Radio Éireann to pay him any additional sum because of its rebroadcast on Eurovision or in any other way if it is done simultaneously. I accept that in fact Radio Telefís Éireann pay additional fees in such cases. They have a hard and fast agreement with the trade unions, Equity for the actors and the Irish Federation of Musicians for a section of the musicians, by which fixed percentages are paid and an increase on the original fee in the case of such rebroadcasts, and in the case of freelance artistes who do not belong to any trade union similar increased fees are always paid in cases of rebroadcasts for the broadcasting organisations.
My objection to this section is that in principle it seems to be wrong that we should enact in a statutory way a blanket consent which would empower Radio Telefís Éireann in law not to pay any additional fees and would give them power to authorise such simultaneous rebroadcasts without any reference to the actual performers.
I understand that the reason this has been inserted in the Bill is that, otherwise, Radio Éireann might be faced with unreasonable demands by foreign performers in cases where we took rebroadcasts from other countries under Eurovision. In such a case the foreign broadcasting organisation has to pay fees in accordance with whatever arrangements they may have in their own country. There is no obligation, moral or otherwise, on RTE to pay further additional sums for such performance.
However, the trouble is that in providing against this possibility we seem to be throwing out the baby with the bathwater. We are enacting a provision that the person is not entitled to a further fee unless it is inserted in the contract. The small print in contracts between RTE and performing artistes does not provide for such increased payments for rebroadcasts on Eurovision. This section is wrong in principle. At the moment, until this Bill becomes law, an Irish artiste has some contractual right to enforce the payment of additional fees in the unlikely event that RTE refuse to pay them, but once the Bill becomes law the situation changes and further payments by RTE in the case of rebroadcasts will be merely on an ex gratia basis. It may be said that it is up to the performer to argue his case with RTE but I do not consider that to be a reasonable proposition.
The average freelance artiste is not a lawyer. The average artiste who does not belong to a union would not be aware that a problem of this kind existed or that there could be any question of his legal rights. In any event, even if he did realise it, no artiste wants to be put in the position of being looked on by RTE as a legalistic trouble maker. Unless he is in the category of the Beatles or the Rolling Stones or somebody eminent like that, the artiste is not in a position to argue this with a broadcasting organisation and, therefore, the onus should be on the organisation rather than the artiste to see that his rights are asserted in a case like this.
I have looked at the section to see how it could be amended and I realise that great difficulties undoubtedly arise. I gather that the international convention forbids any discrimination between artistes of one country and another, and to provide that the consent of Irish artistes should be required but not the consent of foreign artistes would, therefore, be a breach of the Convention. One could eliminate the section altogether but that, perhaps, would face RTE with the danger of being flooded with demands from foreign artistes who were not morally entitled to the benefits claimed.
The section seems to be unsatisfactory as it stands but I am not sure what, if anything, can be done about it. The situation might be remedied—to some extent though not entirely—if some sort of undertaking could be wrung out of RTE to insert in all their contracts in the future some provision in the small print that in the case of rebroadcasts the usual additional payments would be made. I think that would partly cover the position. It would also cover RTE in a respect which this section does not cover them because the section deals only with simultaneous rebroadcasts. It does not cover the far more common situation in which a television network or radio station broadcast is in later weeks or months sold to another broadcasting concern.
The usual practice in Radio Éireann in the past has been that in the case of such rebroadcasts they did not bother to ask the original performer for his permission. He did not even know of the rebroadcast until a cheque came to his doorstep, of which he was very glad. That normal procedure of the past will be contrary to the Bill and render RTE liable to prosecution because they will have made a second broadcast without the consent of the performer. They can cover themselves against that by putting into the contract some sort of vague provision that the performer's consent to the contract is also a consent to further rebroadcast in respect of which he would be paid additional fees. It would cover the performer and RTE in the matter of later rebroadcasts rather than the simultaneuos rebroadcasts covered by this section.