On the amendment which was carried, I may make further amendments on Report Stage.
Copyright and Other Intellectual Property Law Provisions Bill 2018: Committee Stage (Resumed)
SECTION 27
Question proposed: "That section 27, as amended, stand part of the Bill."
Perfect. I thank the Minister of State.
Question put and agreed to.
SECTION 28
Amendment No. 3 was discussed with amendment No. 1, but perhaps some Senators wish to say something on the section.
I move amendment No. 3:
In page 22, to delete lines 12 to 16 and substitute the following:
"(3) Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—
(a) either—
(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive, or
(ii) during the course of a public lecture given in an educational institution or in a prescribed library or prescribed archive or given by the librarian or archivist of a prescribed library or prescribed archive,
(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and
(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 50(1).
(4) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.
(5) In this Part, ‘fair dealing’ includes the making use of a performance or recording which has been lawfully made available to the public for a purpose and to an extent which will not unreasonably prejudice the interests of the rightsowner where such use is accompanied by a sufficient acknowledgement.".".
First, I will withdraw the amendment. Is that the way it goes? I withdraw the amendment with the-----
It was discussed with amendment No. 1.
Yes, but I want to indicate that I will not press it to a vote. I reserve the right to resubmit it on Report Stage.
I thank the Minister of State very much for his helpful suggestion that I meet officials of his Department. I see two of them here today. I believe this was led by Ms Debbie Browne. I was not able to go to the original meeting because I was unwell but Senators Bacik and Warfield did attend and they found it useful. The Department officials made arrangements for me to see them another day and I did go in. I spent an hour with them and it was extremely useful. They gave me a series of precedents and law cases.
As I understand it, the argument from the Government is essentially that, while we are putting something in here about our concern for particular kinds of libraries and research facilities and so on, this kind of protection is dispersed throughout the Bill. It argues that this exists so our amendments are not necessary. That is the situation as I understand it. The way in which education in libraries and archives is dealt with separately in the Copyright and Related Rights Act 2000 is consistent with EU copyright acquis, in which they are also dealt with separately to ensure clarity as to the exceptions and limitations for each area. We are largely following the principles and ethos of the European Union again.
If a library based in an educational institutional provides a public lecture, it may rely on the exceptions provided for libraries and archives under section 18 in respect of the use of works that are copyright protected, and section 31 in respect of the use of recordings of performances that are copyright protected. If that same library was providing an internal lecture for students, it would rely on the exceptions for education under section 14 in respect of the use of works that are copyright protected, and section 28 in respect of the use of recordings of performances that are copyright protected. These areas are covered in our amendment, but I understand the Government's argument is that these are covered in different parts of the Bill anyway so our amendment is redundant. That is my understanding but it is a rather technical Bill and I am not particularly good at technical things. I have to feel my way around. One can give me any kind of numbered diagram about how to put in a plug or how to change the wiring in one, but I cannot do it. My mind just freezes. If, however, one shows me how to rewire a plug, I can do it quite easily.
I will leave it at that because we have a number of large, long and detailed amendments to come to. Perhaps I should say a little bit more. Section 18 provides for a new section 69A in the Copyright and Related Rights Act, which would allow libraries and archives to display works in their permanent collections or through dedicated terminals. They would not be inhibited in mounting exhibitions of material. That kind of public viewing is not seen as an infringement of copyright. That is, of course, just plain common sense and a very good thing.
At this stage, I will make brief reference to a number of cases that were drawn to my attention. They were referred to by the senior civil servants to whom I spoke. I said that I had no idea what they were and asked to have some details sent on to me. The first one was Padawan SL v. SGAE, C-467/08. The 2010 ruling in this case enshrined that a fair balance must be maintained between right holders and users of protected subject matter and that the concept of fair compensation must be regarded as recompense for the harm suffered by the author or right holder through a private copy being made. That ruling also clarified that a private copying levy must be linked to the act of private copying specifically, so there is a resultant need to carve out a levy being placed on business media and equipment. That seems to go towards a situation in which it is the individual copyrighter who is being targeted. It says that a private copying levy must be linked to the act of private copying. When one says, "the act of private copying", it suggests an individual in his or her room with a machine making this copy.
There were a number of other rulings but I will come on to them later because they seem to fall principally into the area of fair compensation and fair dealing, which relates to amendments Nos. 6 to 8, inclusive. I will leave it at that but will the Minister of State confirm my view that the intentions of the amendment we tabled are met in disparate parts of the Bill? This follows the protocol of the European Union, but I would like confirmation that the issues we raised and the concerns we had have been met in the Bill, meaning that our amendment, to that extent, is redundant. I may have completely misunderstood the Minister of State but, on the other hand, I may have got on to something fairly logical.
Before I call the Minister of State, we will hear from Senator Bacik. He may then deal with the two contributions.
I welcome the Minister of State to the House. I believe we are still on amendments Nos. 1 to 3, inclusive, and 5. Is that right?
We are on the section, so we are talking about it.
We are on amendment No. 3, which Senator Norris has indicated he will withdraw. He may move it again in another form on Report Stage.
There was a grouping. Amendments Nos. 1 to 3, inclusive, and 5 were being debated together.
They were discussed with amendment No. 1.
Yes, we have discussed them.
We are on amendment No. 3.
I just wish to reiterate what Senator Norris has said and thank the Minister of State for setting up an engagement with his officials. It was useful for us all to meet. Senator Norris met the officials separately but Senator Warfield and myself have certainly met with them since the previous day on which Committee Stage was taken in this House. It was certainly very helpful to discuss the amendments with them.
We have discussed the first group of amendments extensively so I will not say any more on that. It was certainly helpful to hear of the context for their drafting and of the issues with EU law and with the acquis in particular. I will, however, reserve more substantive comments to make on amendment Nos. 6 to 8, inclusive, which are the amendments about which we spent most time deliberating with officials. It was helpful to do so, but we would all still want to make the particular points we have made about those particular amendments, which are more substantive. I will reserve my more detailed comments for those.
I thank the Senators for agreeing to meet my officials. I know it is a complicated Bill. Even trying to read it now, I find it complicated. Regarding education in libraries, I believe the intentions of the Senators’ amendments have been met in other parts of the Bill. If the Senators read the Bill in its entirety, it makes the amendments redundant. Although I acknowledge it is a complicated Bill for everyone, my officials are always available to meet any Member on any issue in the Bill with which they have some difficulty or on which he or she has a genuine misunderstanding. If any Member feels over the next week or two that he or she still needs to speak with my officials, they will be there to meet him or her.
What is proposed in the amendments has been substantially met in other parts of the Bill.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 22, line 12, to delete “means” and substitute “includes”.
I will not press the amendment to a vote.
Amendment, by leave, withdrawn.
Section 28 agreed to.
Sections 29 to 36, inclusive, agreed to.
NEW SECTION
I move amendment No. 5:
In page 29, between lines 2 and 3, to insert the following:
“Fair dealing
37. (1) Section 50 of the Principal Act is amended, in subsection (4), by substituting “includes” for “means”.
(2) Section 329 of the Principal Act is amended, in subsection (2), by substituting “includes” for “means”.”.
This is a fairly small amendment. It refines and sharpens the focus of the wording.
Is the amendment being withdrawn?
I will withdraw it and reserve the right to resubmit on Report Stage.
I call Senator Warfield.
Does Senator Warfield want to press the amendment to a vote?
I thought we were on amendment No. 6.
We are on amendment No. 5 to section 37, which proposes the insertion of a new section. I take it the amendment is being withdrawn.
Amendment, by leave, withdrawn.
Section 37 agreed to.
Sections 38 to 44, inclusive, agreed to.
NEW SECTION
Amendments Nos. 6 to 8, inclusive, are related and amendment No. 7 forms part of a composite proposal with amendment No. 8. Therefore, amendments, Nos. 6 to 8, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 6:
In page 32, between lines 20 and 21, to insert the following:
“CHAPTER 5
Miscellaneous amendments of Principal Act in relation to user rights
Fair dealing
45. (1) Section 49 of the Principal Act is amended by inserting the following subsection after subsection (1):
“(2) In this Part, ‘lawful user’ means a person who, whether under a licence to undertake any act restricted by the copyright in the work or otherwise, has a right to use the work, and ‘lawful use’ shall be construed accordingly.”.
(2) Section 50 of the Principal Act is amended, in subsection (4), by substituting “includes” for “means”.
(3) The Principal Act is amended by inserting the following section after section 50:
“Fair dealing - public lectures in educational establishments
50A.(1) Without prejudice to the generality of section 50(1), the brief and limited display of a copy of a work—
(a) during the course of a public lecture given in an educational establishment,
(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and
(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 50(1).
(2) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.
(4) The Principal Act is amended by inserting the following sections after section 106:
“Fair dealing - format-shifting for private use
106A.(1)Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if—
(a) the owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format,
(b) he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced,
(c) the reproduction is made for his or her private and domestic use,
and
(d) the reproduction is made for purposes that are neither directly nor indirectly commercial.
(2) Subsection (1) shall not apply if—
(a) the work being reproduced is an infringing copy, and
(b) the person making the reproduction did not have reasonable grounds to believe that the work was not an infringing copy.
(3) Where a reproduction which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.
(4) For the avoidance of doubt, subsection (3) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.
(5) Subsection (1) does not apply if the owner or lawful user of the work from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.
(6) Without prejudice to section 2, for the purposes of subsection (1)(a), ‘work’—
(a) includes a work which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and
(b) does not include a work which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.
(7) It is not an infringement of any moral right conferred by Chapter 7 of Part II to do anything which by virtue of this section is not an infringement of an infringement of the rights conferred by this Part.
Fair dealing - back-up copies
106B.(1)(a) Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if the owner or lawful user of the work makes or causes to be made a reproduction of the work as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.
(b) In particular, it is not an infringement if the reproduction is made as a back-up copy in case the work is lost, damaged or otherwise rendered unusable.
(2) Subsection (1) shall apply only if the owner or lawful user of the work being reproduced owns or is authorised to use the medium or device on which the reproduction is reproduced.
(3) Subsection (1) shall not apply if—
(a) the work being reproduced is an infringing copy, and
(b) the person making the reproduction did not have reasonable grounds to believe that the work was not an infringing copy.
(4) If the work is lost, damaged or otherwise rendered unusable, then a reproduction made under subsection (1) shall be treated as the work.
(5) Where a reproduction which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.
(6) For the avoidance of doubt, subsection (5) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.
(7) Subsection (1) does not apply if the owner or lawful user of the work from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.
(8) Without prejudice to section 2, for the purposes of subsection (1)(a), ‘work’—
(a) includes a work which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and
(b) does not include a work which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.
(9) It is not an infringement of any moral right conferred by Chapter 7 of Part II to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.
(5) Section 220 of the Principal Act is amended—
(a) by designating the existing section as subsection (1), and
(b) by adding the following subsection:
“(2) In this Part, ‘lawful user’ means a person who, whether under a licence to undertake any act restricted by recording rights in relation to a performance or otherwise, has a right to use the recording of a performance, and ‘lawful use’ shall be construed accordingly.”.
(6) The Principal Act is amended by inserting the following section after section 221:
“Fair dealing - public lectures in educational establishments, libraries and archives
221A.(1)Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—
(a) during the course of a public lecture given in an educational establishment,
(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and
(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 221(1).
(2) Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—
(a) either—
(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive, or
(ii) during the course of a public lecture given in a prescribed library or prescribed archive or given by the librarian or archivist of a prescribed library or prescribed archive,
(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and
(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 50(1).
(3) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.
(7) The Principal Act is amended by inserting the following sections after section 254:
“Fair dealing - format-shifting for private use
254A.(1)Without prejudice to the generality of section 221(1), it shall constitute fair dealing with a recording of a performance for the purposes of section 221(1) if—
(a) the owner or lawful user of the recording makes or causes to be made a reproduction of that recording in a different format,
(b) he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced,
(c) the reproduction is made for his or her private and domestic use, and
(d) the reproduction is made for purposes that are neither directly nor indirectly commercial.
(2) Subsection (1) shall not apply if—
(a) the recording being reproduced is an infringement of the rights conferred by this Part, and
(b) the person making the reproduction or causing it to be made did not have reasonable grounds to believe that the recording was not such an infringement.
(3) Where a reproduction which would otherwise be an illicit recording is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.
(4) For the avoidance of doubt, subsection (3) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.
(5) Subsection (1) does not apply if the owner or lawful user of the recording of a performance from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.
(6) Without prejudice to sections 2 and 202, for the purposes of subsection (1)(a), ‘recording of a performance’—
(a) includes a recording which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and
(b) does not include a recording which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.
(7) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.
Fair dealing - back-up copies
254B.(1)(a) Without prejudice to the generality of sections 221(1) and 242, it shall constitute fair dealing with a recording of a performance for the purposes of section 221(1) if the owner or lawful user of the recording makes or causes to be made a reproduction of that recording as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.
(b) In particular, it shall constitute fair dealing for the purposes of section 221(1) if the reproduction is made as a back-up copy in case the recording is lost, damaged or otherwise rendered unusable.
(2) Subsection (1) shall apply only if the owner or lawful user of the recording being reproduced owns or is authorised to use the medium or device on which the reproduction is reproduced.
(3) Subsection (1) shall not apply if—
(a) the recording being reproduced is an infringement of the rights conferred by this Part, and
(b) the person making the reproduction or causing it to be made did not have reasonable grounds to believe that the recording was not such an infringement.
(4) If the recording is lost, damaged or otherwise rendered unusable, then a reproduction made under subsection (1) shall be treated as the recording.
(5) Where a reproduction which would otherwise be an illicit recording is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.
(6) For the avoidance of doubt, subsection (5) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.
(7) Subsection (1) does not apply if the owner or lawful user of the recording from which the reproduction was made disposes of, gives away, rents, or sells that recording to another person without first destroying all reproductions of that work which he or she has made under that subsection.
(8) Without prejudice to sections 2 and 202, for the purposes of subsection (1)(a), ‘recording of a performance’—
(a) includes a recording which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and
(b) does not include a recording which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.
(9) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.
(8) Section 329 of the Principal Act is amended, in subsection (2), by substituting “includes” for “means”.”.
It will take some time to deal with these amendments because the three being taken together extend to ten or 12 pages. They form the core of the Bill.
Subsection (1) of the proposed new section deals with fair dealing and defines a lawful user. In other words, the person who has the right to use material and copy it. The concept of fair dealing is fairly universal. Even in the fairly restrictive area of print copyright, there is the concept of fair usage, that one can, for example, for scholarly purposes quote a certain section of a work but that section is limited by common sense and one can go to court for a ruling. One cannot quote an entire novel to illustrate a point in a lecture but one can quote a few sentences from it. There is that exception. It is rather different. Fair dealing in literary works really means the amount that one can quote. Subsection (1) states, "In this part, ‘a lawful user’ means a person who, whether under a licence to undertake any act restricted by the copyright in the work or otherwise, has a right to use the work, and ‘ lawful use’ shall be construed accordingly.”
Subsection (3) deals with fair dealing in terms of public lectures in educational establishments. We had some discussion on that in dealing with amendment No. 3, which covered the situation in libraries. Subsection (3) states, "Without prejudice ... the brief and limited display of a ... work .. during the course of a public lecture given in an educational establishment ...". For example, a lecture could be given in which slides of a work of art that may be under copyright, slides of literary manuscripts or slides of the history of fashion could be shown but in a limited way. That comes under the idea of fair usage. During a public lecture in an educational establishment if a slide is shown, for example, that is relevant to the lecture, that is not an infringement. Subsection (3) also states that the display of a copy of a work has to be “undertaken for the sole purpose of education, teaching, research or private study ... accompanied by a sufficient acknowledgement [and] shall constitute fair dealing with the work for the purposes of section 50 ...”.
Subsection (4) deals with format-shifting, which is a type of downloading, and this is downloading for private use. The subsection states:
... Without prejudice to the generality of section 50(1), it shall constitute dealing with a work for the purposes of section 50(1) if-
(a) The owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format ...
In other words, he or she already owns the material in a particular format and he or she is just changing the format, presumably electronically. That seems to be pretty reasonable. If one already owns a copy of the material, why should one not make a copy of it as long as it is for private use and not for sale and there is no commercial advantage involved in it? The phrase "he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced [limitations are included] ... the reproduction is made for his or her private and domestic use ..." is also used in the subsection. That is a severe limitation. That rules out any kind of pirating or unlawful reproduction. The subsection further states: "the reproduction is made for purposes that are neither directly nor indirectly commercial." In other words, there should be no profit or financial gain from this process of copying. The subsection further states:
(2) Subsection (1) shall not apply if-
(a) the work being reproduced in an infringing copy [it gets rather technical here about what is or is not an infringing copy] ...
(3) Where a reproduction which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy ...
In other words, all the descendants of an infringing copy are also infringing copies. That is intended to limit access to an illegal market, a black market, in, for example, CDs, tapes or videos that were manufactured on a large scale by commercial enterprises.
Subsection (4) also deals with fair dealing in terms of back-up copies. The creation of such copies in this context is obvious because material can often be damaged. Material can be lost on computer. I do not use computers. I do not understand anything about them and I do not want to but I know people frequently suffer a loss of material from their computers due to an electrical surge, or their computer is stolen, or somebody fiddles with the keys and suddenly memory is wiped off the computer and one is left with nothing. In those circumstances not only should it be lawful but it should be required that copies are kept in order that valuable material is not lost. The subsection further states, “In particular, it is not an infringement if the reproduction is made as a back-up copy in case the work is lost, damaged or otherwise rendered ... [inaccessible]”. I cannot see any argument against that. We are dependent on having access to these kinds of copies.
Subsection (6) deals with fair dealing – public lectures in educational establishments, libraries and archives, which relates to the subject of amendment No. 3. It states:
(1)Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—
(a) during the course of a public lecture given in an educational establishment,
(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and
(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 221(1).
That is perfect common sense and I do not see how anyone could object to it. Perhaps the Minister of State will come up with an objection or he will say it is already covered in another section. It is a perfectly sensible amendment and it continues:
Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—
(a) either—
(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive,
The words “in a prescribed library” are important and mean that it becomes lawful in that particular space. It is then extended by the reference to the archivist. As I understand it, this means that the archivist can take the material to a town hall, a civic group or a community group and it does not have to be physically in the particular library. He or she can give the same lecture and show the same slides or reproduce the same music without infringing copyright. The right to use the material resides not just in a location but in the personnel also. It has, of course, to be taken for the sole purpose of education.
The amendment also deals with fair dealing and format-shifting for private use and states:
Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if—
(a) the owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format,
This also seems to be reasonable as one is just changing the format. I am not terribly well acquainted with matters of this nature but I assume it means taking something one has on one’s telephone and transferring it to one’s computer. It is moving from one medium, or one electronic device, to another if the person owns or is the lawful user of the medium or the device on which the reproduction is produced. It has to be the owner of the recording and the owner of the device on which the reproduction is made. It requires that the reproduction is made for his or her private or domestic use and that the reproduction is made for purposes that are neither directly or indirectly commercial. That also is very clear. Subsection (3) states:
Where a reproduction which would otherwise be an illicit recording is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.
This appears to be directed at pirating. In other words, if a person has an illicit recording and makes a further recording from the illegal copy, those copies are also illegal and cannot be commercially distributed or sold. That is also perfectly reasonable.
The next area is fair dealing and back-up copies. I have already said what I need to say about that. It is very important to have back-up copies because they are an insurance against the loss of intellectually valuable material.
Amendments Nos. 7 and 8 deal with the right to fair compensation. Amendment No. 7 states, "The owners of rights conferred by this Part are entitled to receive fair compensation from manufacturers and importers of blank recording media to compensate the said rightsowners fairly for harm done to them by the use made of their works pursuant to sections 106A and 106B." I find this interesting and the Minister might comment on the question of putting a levy on blank copies before there has been any re-recording of the material. The company involved pays a levy on 25,000 blank CDs or tapes and the money is given to the people whose work is used. It also states, "The right to fair compensation conferred by this section shall not be waived by the rightsowner, and such a rightsowner shall not assign the right to fair compensation except to a collecting society for the purpose of enabling the collecting society to exercise that right on behalf of the rightsowner." I would have thought the creators of music, song, verse and so on would be interested in getting fair compensation but the impression I have got from discussions with them, and in this House, is that the artists are not pushing for this. Perhaps the Minister can give a reason for what is proposed because I am rather surprised by it. The amendment also states that they have the right to pass on their proprietary rights to this material in a will. I would be grateful if the Minister would talk about a blank recording medium.
The next subsection reads:
(3) No levy shall be payable pursuant to subsection (1) where—
(a) it is a term of the sale of the blank recording medium that the medium is to be exported from the State, and it is exported from State,
That is fairly obvious. If it is only in transit through the State and there is no possibility of a recording being made of the material, there is no reason why a levy should be paid. It continues:
(b) the manufacturer or importer of a blank recording medium sells it either to a designated body as defined in section 104(3) or to a purchaser who is purchasing it in the course of a business.
There is then a requirement for the collecting agencies to keep accounts properly and to make them available. The next proposed new section deals with levies to fund the right to fair compensation.
Amendment No. 8 refers to the register of copyright collecting societies. If we are going to have people collecting money on behalf of artists, we need to know who they are. They need to be officially established and registered so this is very important. It also deals with the notification of levies, the validity of certificates and the obligation of collecting societies to register. Chapter 8A deals with the registration of collecting societies for performers' property rights.
I want to mention a couple of cases from Europe which I think are helpful for the purposes of understanding the debate. I am relying on a note I received from the advisers to the Minister. The first is Hewlett-Packard Belgium SPRL v. Reprobel SCRL, case C-572/13. This was litigation between the enormous computing company, Hewlett-Packard, and a Belgian collective management rights association that was operating on behalf of the artist, called Reprobel. In 2004, Reprobel informed Hewlett-Packard that the sale of multifunction devices, which allowed copying, entailed payment of a levy and that this payment should apply retrospectively. Subsequent party-to-party discussions did not lead to an agreement and both parties filed legal proceedings before the Brussels Court of First Instance. Reprobel claimed that payment of the remuneration was due pursuant to the royal decree while Hewlett-Packard argued that this remuneration was not due at all, one of the reasons being that the amount Hewlett-Packard had already paid corresponded to the fair compensation owed, pursuant to the Belgian legislation interpreted in light of the InfoSoc directive.
Following a number of claims, counterclaims and issues of compatibility involving Belgian and EU law, the Court of Appeal in Brussels decided to stay the proceedings in order to seek guidance from the European Court of Justice, which it did.
The latter gave a ruling on 23 October. The 9th Chamber of the Brussels Court of Appeal referred four questions to the European Court of Justice, one being on the conformity with EU law of the 50:50 author-publisher distribution split, taking into account that the publisher is under no obligation to pay back, even indirectly, a part of the remuneration so received to the author. Another question was to seek guidance on the notion of fair compensation, which is what we are dealing with directly. It pertains to Articles 5.2(a) and 5.2(b) of the 2001/29 directive, querying whether the notion could be interpreted in a different way depending on whether the reproduction on paper is made by "a natural person for personal use, or by any person in general". I take "any person in general" to mean somebody with a commercial interest in the material who is intent on pirating the material. There was a question on the Belgian dual reprography remuneration scheme, including an equipment levy based exclusively on the copying speed of the device having no other link with the possible harm suffered by right holders. Again, it is contentious that one would charge somebody simply on the basis that he or she has the potential to reproduce material at a particularly high speed. He or she may never do it. I am just curious about that.
The most important part of the judgment is that "fair compensation is intended to compensate actual harm caused to right holders, resulting from the reproduction of their work without their authorisation, and must therefore be calculated proportionately to that harm."
There is just one other case I want to mention. The British introduced, in 2014, a copying exemption without a levy. This allowed people to make private copies of legally acquired content. It would have allowed consumers to transfer the content of their own CDs to an MP3 player, for example, but would not have allowed people to make copies and give them to others. The judgment covered three issues. Should the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 be quashed? The court ruled that the UK private copying exception was quashed. The legislation that was passed allowing the exemptions without a levy was quashed by the European court. Should there be a reference to the European court? As the legislation was quashed, it was decided there was not to be one. We, therefore, have an interesting case of a neighbouring government introducing in very recent years an exemption for private use that was quashed by the European court. These are the limits within which the tailoring of Irish law has to take place.
As a result of the discussions I had, which were helpful, it became clear that this was not a case of Ireland acting in isolation. We had relations with, and obligations to, other countries. We had treaties and legal arrangements with other countries. Overall, we had the European Union and its courts of justice and so on. Therefore, we were not tailoring a Bill in isolation. It was not as if we had a blank page and could do for Ireland whatever we wanted. There are constraints imposed by our entanglements with other states.
I am afraid I was rather long-winded. The three amendments cover approximately 14 or 15 pages so I hope I will be excused on that score. I hope I have not been too rambling.
Senator Norris has eloquently put the case for amendments Nos. 6 to 8, inclusive. I will follow up briefly because we had also proposed these amendments. I thank Professor Eoin O'Dell in Trinity College for his input.
For writing them.
For writing them and for his immense help in explaining them to us. I thank the officials for meeting us to go through the substance of these amendments. Both Senator Warfield and I were very impressed by their expertise and depth of knowledge in what is, as Senator Norris and others have said, such a technical area.
Amendments Nos. 6 to 8, inclusive, essentially deal with the substantial issues of fair dealing and fair compensation and, in addition, seek to cover specifically public lectures in educational establishments. Let me deal with public lectures in educational establishments first. We are told this is not something that is specifically covered elsewhere, yet it is clearly an area in which an exception should be made. I realise the issue is implied. We discussed this earlier. The Minister of State will probably respond by saying this is covered elsewhere. Section 18, which inserts a new section 69A into the Principal Act, provides for public lectures given in prescribed libraries or archives, "undertaken for the sole purpose of education, teaching, research or private study". It may be that educational establishments are implied in that but we believe it should be made explicit. I referred on the previous occasion to an amendment to section 18(2)(a)(ii) to include "or an educational institution" where a prescribed library or prescribed archive is currently provided. That might be a way of dealing with it. When we canvassed on this at the briefing with the officials, we were told educational institutions are dealt with separately. It does not seem, however, that they are explicitly covered. Amendments Nos. 6 to 8, inclusive, deal specifically with public lectures in educational establishments. That is one discrete issue.
The other more substantial issue is a fair dealing exemption. I refer to user rights. These and fair compensation were dealt with in the report on modernising copyright to which we have referred. This report, which was published in 2013, provided specifically for exceptions to normal copyright law to enable user rights on the basis that consumers now commonly assume that if they buy content for personal use, they should be able to access it in different formats and on multiple devices, and they should be able to back it up. Many consumers routinely copy content and make backups believing it is legally permitted. Currently, it is an infringement of copyright to shift formats or make backups. It would be assumed, therefore, that any reforming copyright law would change that to ensure fair use by consumers is not a breach of copyright law. These are well-established practices. Failure to acknowledge this reality, as Professor O'Dell has suggested, would diminish respect for the system of copyright and undermine the credibility of copyright legislation. We certainly discussed this at the briefing with officials. It does not seem to me to be good law to reform copyright without acknowledging the reality of use by consumers in a non-commercial environment, which should not amount to a breach of copyright law. The European directive enables us to create the exceptions that our amendments propose. I refer specifically to amendment No. 6. We are proposing that private copying exceptions to enable format shifting and backing up should be introduced, subject, of course, to a system of levies for fair compensation, as the EU directive requires.
I understand these recommendations, which were in the 2013 report, were not included in the Bill due to a political decision taken not to proceed with the exceptions for user rights. It may well be that rights holders were not looking for a levy system, that it was not something raised with the Minister by stakeholders, and that it, therefore, appeared there was a lack of demand for the sorts of exceptions we are seeking to provide in our amendments. I anticipate that the Minister of State will say there is concern that the cost of creating the exceptions together with the levy scheme we are seeking in amendment No. 7 might be passed on to consumers. However, we are entitled to say there would be other ways of paying for the levy scheme. I am grateful to those who briefed us and who told us that 22 EU jurisdictions have a levy system in place to allow for the sorts of user exceptions we are talking about for fair dealing. While each levy system is different, significant costs are not always passed on to the consumer. It certainly seemed to us, and also Senator Warfield, that it might be possible to create a scheme whereby the cost would be borne by device manufacturers, as it is by photocopier manufacturers, for example. Thus, manufacturers of devices, such as Apple, would be able to absorb any costs from a minimal levy scheme to ensure a private user exemption would be built in, thus allowing good law whereby people who deal fairly as consumers by backing up legally purchased material would no longer infringe the law.
It may be that the prospects of any enforcement of the law are minimal. That is something I anticipate the Minister of State might say but it is not good law. It undermines respect for law if we continue on the assumption that nobody will be prosecuted or no proceedings will be taken against people in civil courts for doing something that is in fact an infringement of copyright, even though nobody knows it is and everyone assumes it is not. It seems strange that we are debating a law that is supposed to be reforming, updating and modernising copyright law without taking account of the reality that, however minimal the possibility, people might well be subject to legal proceedings because they are in fact breaching copyright through doing something in good faith and that we all do all the time. It seems particularly bizarre that we are doing that when in fact there are levy schemes in place in other jurisdictions and they are legally possible under the directive.
The UK scheme was quashed but we have been told there are other ways of providing for levy schemes. It may be that improvements could be made to our amendments but the point we are making is that in principle there should be exemptions for fair dealing by consumers coupled with a fair compensation scheme. That is the substance of what we are seeking to do in amendments Nos. 6, 7 and 8, where we provide for a registered copyright collecting society. Amendments Nos. 6 and 7 are the crucial amendments. I look forward to hearing the Minister of State's response to this. There is a matter of principle here that, whatever stakeholders, copyright management organisations and others may have sought, may not have been a priority for them. We are trying to represent as the views of the ordinary consumer who should be entitled to carry out good-faith practices of copying, backup and format shifting without being subject to any legal consequence. That is the crux of what we are seeking to do in these amendments. That is also what the Modernising Copyright report sought to do in 2013. We are trying to take on board its recommendations and put them into law. That is the purpose of these amendments.
I thank the Senators for their close analysis of a very complicated Bill. I will do my best to go through it as much as I can. The private copying exception contained in section 45, alongside the proposed sections 46 and 47 are a set of far-reaching proposals, the subject of which has already been considered in depth by the Department and rejected by Government. The Copyright Review Committee's, CRC, report in 2013 recommended the introduction of a private copying exception which would be framed for private and domestic uses and would cover reproduction on paper for private use, format shifting and reproductions for backup copies.
The amendments put forward by the Senators, to sections 45, 46 and 47, reflecting this proposed exception, proceed to include an accompanying proposal to introduce copyright levies, and in addition seek to establish copyright collecting societies to collect and redistribute these levies to rights holders. These three proposals are necessarily linked and I cannot accept any of them. The Department is of the view that levies are essentially a tax on consumers and that their introduction would impose unnecessary additional costs on consumers. While the proposed amendment as drafted would place the burden on businesses to pay levies, it is inevitable that these costs would be passed on to consumers, including business consumers, when they purchase material for the purpose of copying or facilitating copying, regardless of the use for which it is intended. This view is supported by the Controller of Patents, Designs and Trade Marks. The view of the Copyright Review Committee in 2013 which is precisely aligned with that of the UK was "that such levies are a blunt instrument that would amount to a tax on innovation". While the way the proposed amendments are drafted would place the burden on businesses to pay levies it is inevitable that these costs would be passed on to consumers, including business consumers, when they purchase material for the purpose of copying or facilitating copying, regardless of the use for which it is intended. In addition, my Department has not received a significant number of submissions from right holders calling for the introduction of levies, either during our engagement with them since the publication of the CRC report in 2013 or since publication of the Bill earlier this year, that is, from the very people who it is purported will benefit the most from these amendments.
Furthermore, evidence from other member states indicates that there would likely be very little additional revenue and that, due to the increased administrative burden placed on collecting societies, this could potentially result in right holders receiving less remuneration and possibly a net loss to collecting societies which must be compensated for through their remuneration pool. We have also not received any engagement from stakeholders on this matter providing evidence of the harm caused to right holders by private copying to justify increasing costs to Irish consumers. Further to this, there has been no analysis of what goods would have levies added to them, or how much these levies should cost. While the proposal refers to a "blank recording medium" which emphasises the copying of a "recording", the open-ended use of the term "work" in the proposed section 106A included in this amendment would make this insufficient.
There are also concerns that the term "blank recording media", contained in the proposed text, is ambiguous when read in context with the "works" that can be copied. This term would need to be expanded to include all means of copying of works to ensure that Ireland complies with its EU obligations. This would have the effect of levies being placed not only on blank CDs, but potentially also on other devices capable of copying, for example, phones, laptops, electronic notebooks, photocopiers etc. That is important. Therefore, these levies would have an impact on everyone from the ordinary person to schools, small and large businesses and so on. Furthermore, this also imposes a cost on all users of blank recording media where the exception to allow copying is limited to "private and domestic use". With regard to the proposed introduction of a private copying exception, I would like to assure the Senators that the Department considered this recommendation carefully and undertook the requisite scrutiny in its analysis of the recommendations of the Copyright Review Committee. Ultimately it was decided not to progress this recommendation and that decision was endorsed by the Government when it approved the draft heads of this Bill. As part of its analysis, the Department examined the amendment to the UK's copyright law that took place in 2014.
Is the Minister of State going to give us the reasons the Government rejected it?
I am coming to that.
At that time the UK introduced a private copying exception without imposing levies. The UK provision was successfully judicially reviewed in 2015, with the court stating that, without sufficient evidence showing the lack of harm caused to right holders, a private copying exception would require a compensation scheme to be established. That is a very reasonable answer to some of the questions the Senators have asked.
There is also a wealth of EU law, particularly under the 2001 information society directive and EU case law, including the Padawan and Reprobel cases, which impacted on that decision. Given that the exception proposed by the Copyright Review Committee for implementation in Ireland was similar to the failed UK exception, and our expectation that it would almost certainly be legally challenged and struck down, it was decided not to progress the committee's recommendation in this area.
It was decided not to progress the committee's recommendation in this particular area. This view was taken in conjunction with the legal advice the Department received on the issue. As already mentioned, that was included in the memorandum to Government seeking approval for the draft Bill.
To go back to the Padawan case to which the Senator referred, the EU found that private copying levies cannot be imposed on commercial users. Most commercial users are either copying their own material or copying copyright material under the terms of licence paid to collecting societies and creators. The little evidence that is available shows that many manufacturers pass on levies on consumer goods such as mobile phones and iPads, which can be significant and which are payable directly by consumers.
The Department has been given legal direction on this. We also spoke to the Controller of Patents, Designs and Trade Marks and the copyright review committee in 2013. We see the levies as a tax on consumers. The proposed amendment refers to a "blank recording medium" which is too vague in the context of the advances that have been made in media storage in recent years.
The Bill is very complicated but I have done my best to deal with amendment No. 6 and to address the issue of the levies and the copyright exception. As I have said, the UK's copyright law was amended in 2014 to introduce a private copying exception without a levy. While I thank Senators for their contributions, based on the detailed information collected by the Department, I cannot accept the amendments.
I thank the Minister of State for his helpful reply. I propose, in consultation with my colleagues, to withdraw the amendment and reserve the right to resubmit it on Report Stage.
In the meantime, the Minister of State referred to legal advice. I know that the advice of the Attorney General is usually not made available but reference was made to a "legal decision". I ask the Minister of State to make available as many legal documents, directives, legal decisions, court case documents and so on as possible for our consideration.
I am a little concerned about the issue of blank tapes or discs because it seems to me that they might be used for completely different purposes. They need not necessarily be used for infringing copyright but can be used for totally different purposes. Imposing a levy on them all seems, as the Minister of State indicated, something of a blunt instrument. I would like to look at that again and may contact Professor O'Dell to ask for his view on it.
Having taken into account the helpful comments of the Minister of State, we will withdraw the amendment with the intention of possibly resubmitting an amended version on Report Stage.
As the Senator knows, Departments are very reluctant to release legal advice. However, we can give the Senator a detailed note on EU and UK case law, which might prove useful. Again, without being patronising, I wish to compliment the Senators on their efforts in submitting amendments on what is a very complicated Bill. That they would do so is great for democracy. My advisers are suggesting that we could have a further meeting following today's discussion. Would the Senator be amenable to that?
Yes, I am sure that would be very helpful. Perhaps the three of us should attend.
Based on what I have said regarding the information available and the further information which I will make available, I ask the Senators to postpone any decision on this until they have met my advisers.
I wish to respond on behalf of my colleagues. We would be delighted to have a further meeting because the earlier meetings we had were very constructive. We are seeking to be constructive as the Minister of State knows. We seek to improve the legislation and the scheme therein. We are agreed that we will withdraw the amendments at this point and reserve the right to reintroduce them on Report Stage.
The Minister of State has indicated that he is not accepting the amendments on principle and we can certainly look at issues concerning blank tapes and so on. However, I expect that would not change on Report Stage. The Minister of State also said that the Department engaged in extensive consultation with stakeholders but that a scheme for fair dealing exceptions and fair compensation that we are proposing was not a priority for them. Our point is that the stakeholders to whom we are referring are not those who are collectively organised or from whom one would expect to get submissions, that is, the broad spectrum of members of the public, consumers, those who are using, copying, backing up and format-shifting all of the time. That is who we are trying to represent here. We are not talking about stakeholders who might be expected to engage in a collective way with the Department and that is the difficulty. We are not hearing from the people who will be the most affected, ultimately. That is what we are trying to address with our amendments.
The Minister of State said that the Department had not received a sufficient number of approaches, which implies that it did receive some. Could the Minister of State give us some more details on that because at another point he said that the Department was not lobbied at all.
To clarify, I stated that my Department had not received a sufficient number of submissions from rights holders calling for the introduction of levies, either during-----
That implies that the Department did receive some submissions.
Actually, my officials tell me that there was no lobbying at all.
That is interesting. The Department did not simply get an insufficient number of submissions; it did not get any.
Yes, according to the note, we did not get any at all, which is very interesting.
It has been agreed that a further meeting will be held with officials. It has been further agreed that amendment No. 6 is being withdrawn. Is that correct?
Yes.
Amendment, by leave, withdrawn.
Amendments Nos. 7 and 8 not moved.
Sections 45 to 105, inclusive, agreed to.
SECTION 106
Question proposed: "That section 106 stand part of the Bill."
This relates to amendment No. 2, which was passed in the Dáil. Since then, there have been ongoing discussions with the Department based on how we can create a legal digital deposit scheme and how the Department can commit to doing that in the most legally prudent way that ensures the scheme is robust into the future. I will withdraw that amendment and reserve the right to return to it on Report Stage because those discussions are ongoing.
Question put and agreed to.
SCHEDULE 1
Question proposed: "That Schedule 1 be Schedule 1 to the Bill."
My Department may wish to submit certain amendments on Report Stage that relate to the educational provisions contained in the Bill. In addition, I refer to section 14, which was agreed without much discussion. Following engagement with interested stakeholders, my Department is currently considering whether it is necessary to introduce amendments to this section to avoid any unintended consequences. Following this analysis, I am advised that there may be the need to table amendments to the section and related technical amendments by inserting a new section in the Bill amending section 173 of the Copyright and Related Rights Act 2000 on Report Stage.
Question put and agreed to.
Schedules 2 to 4, inclusive, agreed to.
Title agreed to.
Bill reported with amendment.
When is it proposed to take Report Stage?
Next Tuesday, 13 November 2018.
Report Stage ordered for Tuesday, 13 November 2018.
Sitting suspended at 1.55 p.m. and resumed at 3 p.m.