Members have been circulated with a new list of groupings of amendments, dated 15 February, and a new sixth additional list of amendments, dated 14 February.
Copyright and Related Rights Bill, 1999: Committee Stage (Resumed).
On section 93 we discussed the problems with the PPI and the issue of clubs and societies. We did make some progress on that and my officials were in touch with PPI. I will inform the committee of this in more detail on Report Stage.
I move amendment No. 73:
In page 61, subsection (1), lines 5 and 6, to delete "by means of his or her own facilities".
It was brought to our attention that, in section 94, the wording restricting the benefit of the copying section to broadcasters who copy using their own facilities excludes broadcasters such as TG4 because the facilities used are generally external facility houses. I understand that the UK equivalent section provides that the broadcaster can copy or authorise a copying for the purposes of the broadcast and there is no mention of its own facilities. We feel similar wording is required in this legislation to afford companies such as TG4 the benefit of this section.
I understand the reason for this amendment in view of the relationship between broadcasting organisations and their contractors, as Deputy Stanton pointed out. However, there is a difficulty as regards the international law governing the area. Article 50 of the Rome Convention for the protection of performers, producers, phonograms and broadcasting organisations and Article 11(b)(3) of the Berne Convention restrict this exception to recordings made by broadcasting organisations using their own facilities. Consequently, I cannot accept this amendment. I appreciate the Deputy's intentions in putting down the amendment and I will give the matter further thought on Report Stage to see if there is any other way this can be addressed other than deleting the restriction to own facilities. The international law on the matter seems clear and I cannot promise we can amend the legislation.
I accept what the Minister said and I am happy with it. I am glad he acknowledged the difficulty this wording poses to independent broadcasters such as TG4 who use outside facilities to produce their material.
There are difficulties and I assure the Deputy we will investigate if there is another way around it.
Given the assurances of the Minister that he will come back to this on Report Stage, I withdraw the amendment.
Amendment No. 73a is in the names of Deputies Owen and Stanton. Amendment No. 73b is cognate. Amendments Nos. 73a and 73b may be taken together. Is that agreed? Agreed.
I move amendment No. 73a:
In page 61, subsection (2), line 11, to delete "6 months" and substitute "28 days".
This amendment proposes to reduce the period of six months to 28 days. I would be interested to hear what the Minister has to say about this. We received a submission from the Mechanical Copyright Protection Society of Ireland. It is concerned about this section which allows broadcasters to make copies of musical works for their licensed broadcasts without infringing copyright. This is appropriate, provided the subsequent copy is destroyed within six months. This is a far more generous timeframe than that allowed by our European partners, including the UK, to whom the Minister went for advice on this Bill. The UK provides for a period of 28 days for the holding of this periphery copy. It is correct that broadcasters are able to make a copy of a musical work for their own use. However, six months seems to be an excessive amount of time to hold a copy and it would be better to reduce this. In keeping with some of the other amendments which the Minister said he will accept or look at again, he should consider this valid suggestion.
If music is used for a particular programme, why does it need to take up space on a shelf for another six months? Surely broadcasters would want to get rid of it after a period of time. If the programme concerned was not going to be shown for some time they might want to keep it until then. I think 28 days is a reasonable time for this.
As the Deputy said, these amendments would effectively shorten the period in which copies of works made by broadcasting organisations and cable programme services for the purpose of their own activities may be retained from six months to 28 days. The period of six months is a continuation of the position in the Copyright Act, 1963. I am aware of the arguments made by the Mechanical Copyright Protection Society that the present six month period should be shortened to 26 days, mainly because it believes there are difficulties in maintaining control over these technical copies for periods as long as six months.
In putting down these amendments, the Deputy should be aware this suggestion has been refuted, by RTE in particular, which sees no difficulty in maintaining control over such technical copies for periods as long as six months. It would regard a change along the lines suggested by the amendment as a significant impediment to its internal operations. We are trying to maintain a balance, as we have done all along. However, if one moves one way one will annoy someone else. RTE is also concerned that a change of this nature would upset the balance of a long established bargaining position between broadcasting organisations and collecting societies, resulting in increased costs for broadcasters. Where the position under the 1963 Act was clear and where no good reason presented itself for change, the approach taken in drafting the Bill was to maintain thestatus quo. In such instances, there is a case for not interfering with long established balances of rights. In this case it seems that the arguments in favour of change are less than convincing and there is a real possibility that such a change could affect the existing balance of rights between the parties for no good reason. I think the committee will agree that the balance I have pursued is based on the status quo and the 1963 Act. No compelling argument has been put forward to change this.
I do not think it is sufficient for the Minister of State to say that just because thestatus quo is satisfactory, it should be left as it is. Ireland is very different in 2000 from what it was in 1963 when the six months was written into the legislation. There may have been a good argument then that there was a need for the making and use of programmes, copies and so on because of the expense involved in carrying out such work. Given modern technology, it is much easier nowadays to make a copy, use it for a broadcast and discard it within 28 days. A huge hill of beans does not have to be surmounted to remake another copy without infringing copyright. It is extraordinary that in his defence the Minister has on many occasions quoted the UK legislation and the Berne Convention. However, in this instance he has decided to go ahead of what is common practice in Europe, including the UK. This Bill is about shattering people’s comfort on all sides, both those who own copyright and those who wish to use material covered by copyright. We must get through to people that they must all take a share of the discomfort, of which there will be a fair amount. In this instance, the case being made for this type of ephemeral copy is valid. The Minister has not given a good reason RTE or anyone else would have said they always had it this way, they like to see them on the shelf for six months, otherwise they would have a gap on their shelves. I have not been given a valid technical reason the six month timeframe is needed.
If the committee will agree, I will ask my officials to tease out further the matter with RTE. This provision is based on the 1963 Act and thestatus quo. I accept that one should try to do what is right and proper from everyone’s point of view, but clearly if bargaining positions are in place where people have certain powers and rights which are working well - this is my understanding based on the submissions I have received - one could argue that we should retain the existing legislation based on the 1963 Act. I will ask my officials to explore the matter further with RTE because we are receiving submissions which indicate that it is not as important an issue as is being presented to me at present. I will be pleased to explore the matter further and try to resolve the matter on Report Stage.
As I said, RTE and the Minister have not made a valid case regarding the six month timeframe. Perhaps they did not know this group would table this amendment. I could think of all sorts of arguments RTE might put forward, which I hope it will do. In the circumstances, I will not press the amendment. However, I will table it on Report Stage or perhaps the Minister will table an amendment.
Will the Minister give a brief outline on section 95? The section seems a bit vague.
This section provides that TV3 or RTE 1 could make use of a recording of one of their programmes provided it is done for the purpose of supervision and control over the programmes.
Is the Minister saying this arises——
This relates to internal control of their own operations. There is no infringement of copyright in that case.
Amendments 74, 127 and 129 are cognate and will be taken together by agreement.
I move amendment No. 74:
In page 61, subsection (1), line 28, to delete "and" and substitute "or".
This Bill is for rightsholders and collection agencies to which I have no objection. As we progress through the Bill, I feel the balance to which the Minister keeps referring has not been achieved and that one must balance the rights of rights holders and others against the public interest and the needs of society. I do not think that generally this has been done. This section is a good example in that it seeks ministerial approval to press the button in one's video recorder, which I find a fantastic proposition. I hope the Minister will cut short the debate by accepting my amendment. The amendment seeks to replace the word "and" with the word "or" as it relates to private and domestic use. I am proposing that the section should read "private or domestic use". It seems that the use of both is overly prescriptive. I do not understand why it is "private and domestic". Therefore I hope the Minister will take this on board so that we can debate the section.
I am concerned about the whole section on which I would like to hear the Minister's reply.
I appreciate Deputy Rabbitte's comments. During the debate in the Seanad, I took out a reference to a licensing scheme being introduced. I am as concerned as Deputy Rabbitte and others to ensure that we allow for the practice of time-shifting. This is a common practice whereby one records a song on radio at home for personal, private, domestic consumption. This is also the case when recording "Coronation Street" or any other programme by a member of the family so it can be looked at later. This is made very clear and I was very anxious when drafting the legislation to ensure that such an occurrence would be dealt with. For this reason the words "private and domestic use" are used. Therefore, I cannot accept the amendment. While it may be just a case of substituting one word for another, the amendment is quite significant. The purpose of the provisions in question as drafted is to provide an exception for the making of copies of works in circumstances where such recordings are both private and domestic. If this was included and recordings were only private, it could be argued that it widens the scope of the exceptions well beyond the domestic sphere, a change which would be open to abuse at the expense of rights holders. It is not the case that consumers are not being protected in their homes by making reference to private and domestic. As a practical matter, the formula private and domestic should allow for any reasonable private time-shift in copying in domestic or family situations.
I have tabled an amendment, which will be dealt with later, that will allow for time-shifting in certain designated areas. The types of cases I envisage would be covered by the amendment include a situation where the proprietor of a nursing home might record a programme to be viewed later or the following day. The terms private and domestic are specifically geared towards the private family home. I hope the committee will agree, from the consumer's point of view, that should be protected. There should be no interference with that normal practice.
Does the Bill contain a time limit on the holding of material made for private and domestic use?
One could hold it for as long one wants.
It is a practical measure designed specifically to provide protection. It is common practice for people to record items in their home. I do it from time to time. I must make sure I do not break the law in this area.
It would not do for the Minister to break the law.
I am sure I still have copies of songs I recorded years ago, but there is no limit on it.
There is no time limit on how long one can hold onto material such as a recording of a film.
No. It is his or her personal property.
What is the position where one makes such a recording or fixation in one's office?
For private use?
The provision states "the making for private and domestic use". If one made a recording in one's office for private or domestic use, he or she is protected under the legislation. The important element is usage, not where the individual made the recording.
I do not understand why the Bill is so prescriptive in many areas. The Minister referred to time-shifting, but it is now an ordinary, every day occurrence in society. I fail to understand why it is necessary to set down a series of regulations in law in terms of when one may use one's video recorder. It is absurd and incapable of being enforced. The Minister's normally inexpressive officials grimaced at me describing it as seeking ministerial approval to press the button on one's own video. However, that is how I see it.
I am not persuaded by the Minister's comments. The section follows the pattern of every other section. There appears to be a right conferred on the public in subsection (1), but subsection (2) follows the pattern where that is narrowed almost to the point of non-existence. Many citizens would be amazed to hear that there are particular circumstances governing when they might make a video recording. It can be dressed up in the language of copyright law, but the notion that this exception only applies within a very narrow parameter is entirely unnecessary, unreasonable and undesirable.
The Minister is the person questioned in these cases but perhaps Deputy Rabbitte could help me by giving me an example of how his wording would assist the Bill? As far as I am concerned, I want to help the consumer in a domestic situation who wants to record an item, such as a song or something on video. This individual will not be in any way compromised by the legislation. I have even extended the possibilities encompassed by the provision to nursing homes, etc. This point will be dealt with shortly. The Deputy wants to broaden the provision to cover private or domestic situations. How would that help the individual?
As the Minister said, that is not my job. My job is to ask the Minister questions and go through the Bill section by section with him. However unlikely the proposition may be, given Deputy Healy-Rae's remarks at lunchtime, let us pretend our roles are reversed. The Minister used the example of a nursing home but if I am in a hospital and a recording is made, as the provision stands, I can only view that in a domestic setting. One cannot view it in the hospital setting.
I thank the Deputy for the example. There is work to be done by me and my Department with regard to designating other areas. However, 99% of the people we are trying to protect in this instance are ordinary consumers, for example, the person who cannot watch a programme at a particular time and records it or the individual who is listening to music on the radio, presses a button and tapes a song. There should be no danger attached to such activity which is part and parcel of ordinary life. We are primarily dealing with those situations.
The example given by the Deputy would be appropriately dealt with in the context of my amendment No. 75 which states "or by establishments prescribed by the Minister for the purposes of this section". The Deputy and I have a common interest in trying to protect the ordinary citizen. It is a question of balance but that is what the Bill involves. It may not be dramatic or radical in many ways because one must at all times protect both parties. In this case, we are protecting the individual.
The Bill was amended in the Seanad to remove any reference to the possibility of a licence scheme. We are trying to ensure the Bill is as simple and straightforward as possible. The provision covering domestic and private use is appropriate in terms of a person listening to or viewing a programme at another time.
I apologise for my late arrival and I hope my questions have not already been put. The section is worrying in terms of what is allowed or not allowed. The subsection mentions showing or playing a copy of the recording in public. How is "public" defined because it could involve showing it in a school, to family, at a club or in a nursing home?
I think the Deputy is referring to section 93.
We are dealing with section 96(2) which states it shall be an infringement if it is made available to the public.
It is important we clarify the section at this point. It appears from what the Minister said that a person can make a recording in an office - taking the example given by Deputy Rabbitte - and take it home with him to view it but the opposite would not apply. In other words, a person cannot make a recording at home and bring it to the workplace to view because it is not a domestic situation. This is part of the crux. The amendment seeks to loosen that provision to allow people to make a recording at home and bring it to their workplace to view. It appears from what the Minister is saying that that would not be possible.
This provision relates to individuals recording material for their own personal use. Members might justifiably question what I am trying to prevent. The other side of the coin would be a person involved on the lecture circuit or in the IMI who could record another person's material in their home or office and use it at one of their lectures, etc. I am concerned that when we speak of private or domestic areas we are creating numerous more options. I think everybody would agree that we do not wish to see a situation where a person could record a television programme and use it as their own. That is not permitted.
That would not relate to private use.
That is just the point and why I am trying to retain the use of the words "private" and "domestic". No difficulty arises with a situation such as the example given by Deputy Rabbitte.
The other way around.
Nor the other way around. It applies in situations such as that of a person working in the IMI or at a conference using material that is not his/her property.
Why is the provision included? I am trying to find reference to time-shifting in the Berne Convention. What is the background to the Department and the Minister feeling they needed to include a section which controls this type of copying which enters into the sittingrooms, kitchens and bedrooms of our homes? Are there not many other sections which would make it quite clear that somebody who records a programme and uses it as an educational aid is in breach of the law? I think that is very well covered by many other sections. There is a danger that we are including something to try to protect ourselves from ourselves and nobody will be able to police it.
What happens to the mother who records a couple of editions of the Simpsons and lends it to the woman up the road who is having a birthday party attended by ten or 12 young people and their mothers and fathers and they view the tapes? The material is no longer private and is not being used domestically. If somebody really wanted to push the issue they could say it was an infringement of the law. I am worried about an over-protection being built in here. Why is it included and what does it mean? Who will police it? Will we have library policemen, photocopying policemen, etc? Will there be raids on houses or parties to find out if material recorded for domestic use has spread its wings? This is the type of section of which we can make fun. We are already making fun of and ridiculing it. In what section of the Berne Convention is it contained and from where did it come? Was it included because of our interest in space programmes? Time-shifting sounds like us all trying to shift our time. I do not wish to ridicule the section but it does not make a great deal of sense to include it.
Under section 19(5)(a) and (b) of the 1963 Act it is not an infringement of copyright in a television or sound broadcast to make a sound or video recording for private purposes. From my understanding it has no root in the Berne Convention. That is why we are including it here. I am of the view, regardless of the advice given, that we should try in any legislation of this nature to have safeguards or clarifications for individuals. In this case we are speaking about consumers and as Deputy Rabbitte and others said much of this relates to protecting rights holders. My motivation for including this section would be that the law be clear on the very common practice whereby individuals record material. The situation as outlined by Deputy Owen in relation to the mother recording the Simpsons and passing it on etc. is protected. That is considered private use.
We are teasing out a very important dimension of this Bill. It is not the easiest thing in the world to try to ring-fence this issue with a finite degree of perfection but we are trying. The language used seeks to deal with reality. I am anxious that homeowners would be clear as to their position. If anyone decided to report our deliberations to the public or the media, hopefully, they would be somewhat relieved to know they would not be pursued. The section is included for that reason alone. I have outlined the other side of the coin of a person recording material and using it as an educational aid at seminars, etc.
I do not believe the example of the IBEC or IMI lecture tour with copyright material procured in this fashion is an argument against my amendment. My amendment merely seeks to have the wording changed to "private or domestic". The Minister's example relates to public use of material. Manifestly it seems to me not to be private use. It is extraordinary that we have not, in the previous 95 sections, had an example of the Minister leaning in the direction of the needs of the wider society or the public good. It is always the opposite. I cannot figure whether that is because of an overly scrupulous adherence to existing international practice by his officials combined with the effectiveness of the lobbying of a certain sector who have besieged the Minister, but that would seem to be the case. It is not good enough to say that the Minister is satisfied that the section caters for 99% of the public. He does not know whether it is 97% or 99% - neither do I - and, in any event, we are not supposed to enact legislation that knowingly discriminates against 1% of the population.
In the example I gave I am at a loss to understand if I am able to afford a private room in the Blackrock Clinic why I cannot review the copy that has been made in my private room in the Blackrock Clinic. How can this be enforced? What is the point of intruding into the domestic situation of what people record? Some 99% of people who record in the domestic setting do so for domestic and private consumption. They do not do so for profit and so on. I would like to hear again what section 19(5)(a) of the 1963 Act states. Apparently it is much less prescriptive than what we are seeking to have it say. I find the notion repulsive that, having struggled home from the pub at night and pushed the button in my video, I want to check whether, if the Minister of State, Deputy Kitt, knew about this, he would approve of it.
The Deputy could ring his local Garda station and ask it to check him out.
I am sure if I rang the local Garda station it would be able to put me right on section 90(1) of the Copyright Bill, 1999. As Deputy Owen said, this is leading us into the realms of absurdity in terms of the extent of prescriptiveness that we are wantonly imposing on ourselves here. I do not see the point and it is that which repels me more than quibbling about various lines in the section.
To prevent Deputy Rabbitte quibbling any longer can the Minister help us?
I do not think there is a huge division between myself and members opposite. I am trying to help the consumer and who knows what may happen down the line with modern communications, television, Internet or whatever. When we come to updating the 1963 legislation it is important to put down markers precisely to help Deputy Rabbitte who is concerned about going home and pressing the botton on his video recorder. It is clear we are talking about private and domestic use. The Deputy has not convinced me that the word "or" as in private or domestic, makes that protection greater. He mentioned the case of himself in the Blackrock Clinic viewing a recording of a programme or whatever; one is protected in that situation because clearly that is for the private use of the person who has made the recording. If you gave a friend a copy of some music, or a song, you had recorded that is covered in the legislation.
It is not domestic.
It is not domestic. According to what the Minister has said it has to be both.
Yes, that is where and/or is significant.
That is the argument; it has to be both - private and domestic.
Perhaps. We have argued it but maybe it has helped us to tease out what we are all trying to do. I have no problem going back to the Attorney General and asking him if the word "or" helps the individuals to whom we have referred, including Deputy Rabbitte in a particular situation, because the purpose of the debate is to make the position as certain as possible. I mentioned earlier the kind of people I want to protect. I will ask if the word "or" improves the position and provides for certainty. I think we are all trying to achieve the same end.
Deputy Rabbitte on amendment No. 74.
The Minister has adverted to his subsequent amendment of which existence I did not know at the time I tabled my amendment. It helps somewhat. I am seeking to broaden the exception to private or domestic as distinct from private and domestic. I do not want to engage in the absurd and ridicule and so on. What is the meaning of "private"? If one watches it with one's spouse, is that private? f one watches it with someone else's spouse, is that private?
It might be private but it might be wrong.
I am puzzled.
That would certainly not be private. In much of what we are providing for in this legislation I would be surprised if we are not unnecessarily inviting litigation in the future, because we are bending over backwards to protect people who are more effective at having inserted in the Bill their particular requirements than others. If ever there was a Bill where the the public good and the interests of citizens generally are dependent on Deputies Owen, Stanton and the rest of us to articulate, it is this Bill because the public do not know anything about it. This is our sixth day in committee and, to my knowledge, not one journalist has written a paragraph about it. There is no understanding in the public domain of this Bill and it has not been subjected to any analysis in the public domain. For that reason, however tedious it is, we have to make some attempt to tease out these questions here.
I agree with the Deputy. The only critical comment I saw on this Bill was in the business pages of a legal journal. It is a great pity this whole debate has not been taken up in the media and in the public domain but that is not in our area of jurisdiction. I shall have the question of "or"versus “and” looked at again and will come back to the Deputy.
I accept that.
Amendment 75 and amendment 1 to amendment No. 75 are related and may be discussed together by agreement.
I will not move amendment 1 to amendment No. 75 as it is over mischievous.
I move amendment No. 75:
In page 61, subsection (1), line 28, after "use" to insert "or by establishments prescribed by the Minister for the purposes of this section".
The object is to allow the Minister to designate certain types of institution providing valuable services of a social nature to the community for inclusion in this time-shifting exception provided for by section 96. The best example that comes to mind is nursing homes, but other examples have been mentioned, which may have good reason to record a broadcast or cable programmes for playing at a time more convenient for their residents but which might not otherwise be included in a purely domestic time-shifting exception.
This is a help to the section if it must be included. Are prisons covered under this provision? Is communal watching of television and videos in prisons treated in the same way as in nursing homes? The Minister of State must physically prescribe the places to be included. He has not listed the places covered under the provision of "private and domestic use". Everyone talks about nursing homes, which are obvious places but will prisons and football clubs be included? Are schools private or domestic? What will be the position in the case of something continuously playing on a monitor in a library or other public building? Will the Minister of State give us a flavour of the buildings that will be covered?
Inviting prisoners to break the copyright law would be unconscionable.
Or inviting the governors.
Prisons and boarding schools should be considered. However, I have not got a long list. Section 55 deals with recording by educational establishments of broadcasts and cable programmes. We have already, to a certain extent, dealt with one dimension of this. If members receive representations or have strong views in this regard, I would be happy if they would signal their intentions to me in the months ahead.
Would a group such as the mothers' union, for example, which records a programme on Rwanda and brings it to the next meeting for discussion, be one of the establishments or organisations covered? The Minister of State is only using the words "establishments prescribed", therefore this does not allow for all the establishments that might be used. A meeting such as I have just described could take place in the church hall. It is unlikely that every church hall or parish hall in the country will be prescribed.
I spoke about services of a social nature to the community. I will consider organisations that fall into that category and do not exist for commercial gain. I am sure many organisations will fit into this category. I do not have a long list but I would be happy to receive a list from members of organisations involved in community and social work that would fall into this category.
I am being picky about this. Does the word "establishments" mean buildings, clubs and bodies of people? Normally the word "establishment" refers to a building but it can also mean the other. Will the Minister draw up a list which includes not just buildings but types of clubs?
My understanding is that institutions and organisations will be included.
What prompted the Minister of State to table the amendment?
There is a reference to this in the 1963 Act. Given that we discussed the question of private and domestic use, it is right and proper that the provision should not be as restrictive as that and that one should allow for these situations. I gave the obvious example of a nursing home but there are many other examples.
I agree it is right and proper but I am merely trying to trace the genesis of it. This is not included in the Bill as passed by the Seanad, therefore I am curious to know where did it come from. If one met the average citizen who asked, "What are you doing now in the Dáil?" and you said, "We agreed today that the Minister shall make regulations to provide for establishments where you may video record a programme that is copyrighted", I think they would send for the people in white coats to take you away. If we enact this legislation, the Minister will have to come up with a list of establishments where it is permitted to push the record button in the video recorder. If one met someone in the street who asked, "What have you done in the copyright Bill today?" and you said, "We got the Minister to issue a list of establishments where people will be able to push the record button in the video recorder without the Minister's permission", they would say you were losing it altogether. I accept it is a necessary exception. However, like Deputy Owen, I do not think it should be included.
It was not included in the 1963 Act which dealt with private use. This allows for situations for which we all want to cater. I do not think it is unusual for a Minister to make provision in legislation for all eventualities. I would not take it as personally as presented by the Deputy, that is, that Minister Tom Kitt must have his mark on all sorts of individual organisations. That would be done at Government level and through a process of consultation. The example of nursing homes came up at official level when the European Union was discussing the directive on the information society. We are not the only people discussing these issues and trying to cater for services of a social and community nature. I do not think it will be as complicated as is being suggested.
The Minister has just answered my question which was how would he prescribe these organisations and how many organisations would be involved. I think the organisations will be prescribed by way of ministerial order.
I will read what the section will now say. I think I have spotted another flaw; this will be ludicrous. I think the section will now read, "the making for private and domestic use by establishments prescribed by the Minister for the purposes of this section of a fixation". Not only will we have to prescribe nursing homes but we will have to prescribe people's homes. Perhaps the inclusion of this provision was stimulated by an examination of Deputy Rabbitte's amendments. Surely the word "domestic" is fully understood to represent people's homes.
The word "or" is included.
My mistake, I was confusing the amendments.
Why is Deputy Owen wrong?
I took the Minister's amendment to read that after the word "use" he is including "or by establishments". Therefore, domestic use does not have to be listed in the ministerial order. It means places other than those understood to be domestic. I assume the making for private and domestic use or by establishments prescribed - it does not make good English at this stage-it is very confusing.
I believe Deputy Owen has a point. The section now reads, "The making for private and domestic use. . . ". The amendment reads, "or by establishments prescribed by the Minister for the purposes of this section". The Bill reads ". . . . . of a fixation of a broadcast or cable programme solely for the purposes of enabling it to be viewed or listened to at another time or place. . . . ." If it is going to be made by the establishments prescribed by the Minister it, presumably, is going to be viewed in that establishment perhaps at another time but not at another place.
That is where the problem lies. The word "establishments" is confusing.
The Deputy has a point. I said we would take another look at the use of "and/or" so if we insert the word "or" we will have a problem. My own view is that there is a case for decoupling this and perhaps include a separate reference.
That is what I was going to suggest. We could say it shall also be possible to do this by establishments.
It could be put in another section.
The amendment, as it reads, is a messy one.
On Deputy Stanton's question, it would come in by order at the commencement of the Bill.
Is the amendment withdrawn?
The Minister should not push it.
I am very sorry I withdrew my amendment to it.
I will look at the wording in the light of Deputies' comments with the intent of catering for the type of situations mentioned. The case that the wording needs to be improved has been well made. I am in the hands of the committee as to what we do procedurally.
The Minister keeps referring to nursing homes. I want him to look at the situation I referred to where people attending a meeting starting up a fund raiser, etc., may have recorded a programme for viewing at that meeting. They might be meeting in a house and not a nursing home but nevertheless it is a public meeting. We should not have someone knocking on their door saying they have reason to believe they are in breach of copyright because they are not meeting in an establishment prescribed by the Minister.
I move amendment No. 76:
In page 61, subsection (1), lines 29 and 30, to delete "solely for the purpose of enabling it to be viewed or listened to at another time or place".
I am sure the ministerial note will reveal everything. I am anxious to hear from the Minister why this phrase is necessary. Prescription is already very tight, so why do we have to qualify it again?
It is an essential part of the exception provided for at section 96 that it be for the purpose of time-shifting to enable a person benefiting from the exception to view or listen to the broadcast or cable programme in question at another time or place. Deleting this explicit requirement will give the exception the appearance of an exception at large. The Deputy will understand that I could not agree to this. In any case the inclusion of this explicit requirement will scarcely inhibit private and domestic recording in practice since it will always be for the purpose of enabling it to be viewed or listened to at another time or place.
Does that mean that one has to make absolutely sure there is a time lapse between the recording of the material and viewing of it? The more I go into this the more I feel this section should not be included.
How do you feel, Deputy Rabbitte?
This is unreal. My amendment makes about as much sense as the section and that is not very much. It is included for reasons of self-interpretation. If the phrase was not included one would not know it related to recordings. The section is unnecessary. We have provided for every conceivable form of piracy in the Bill yet we have to include a section which deals with domestic video recording. We have outlawed improper video recording in other sections. Why we need to include this section is beyond me.
Perhaps I can help the Minister. I recognise that cable programmes might not have been around in 1963. There is a need to protect privately made recordings. Why was the section not drafted to read "the making of a copy for private use is not an infringement of the law" and not include all these words for judges and barristers to dwell over and make money on? The Minister read a very simple formula from the 1963 Act. Why he did not include a reference to "broadcast or cable programme?"
I am beginning to see some logic in what is being said.
Does the Minister wish he was over here?
He does not see that much logic.
I saw the reference "for the purpose of enabling it to be viewed or listened to at another time or place" as almost an explanation of time-shifting. There is merit in using language that explains matters. The 1963 Act made reference to "private" use which is shorter and less complicated. Our motivation is to make things clearer.
It is stunning.
As I stated, I will come back on the question of using the words "and/or".
The only experts in this country on copyright are sitting in this room. I do not believe there is another living sole for whom this would be clear.
Very few people were well versed on this legislation when it was discussed in the United Kingdom. We are all making a genuine attempt to deal with the Bill. I will look at this again and if it is not necessary and we can use some other language we will. To be fair those who helped draft this legislation were trying to explain the time-shifting concept.
Each of us has at least 45 things to look at for Report Stage.
That is the purpose of a Committee Stage debate.
How stands the amendment?
I am not sure. What did the Minister say?
I said the provision was there to explain time-shifting. I am giving a commitment that we will see if we can use other language.
What is wrong with outlawing copyright other than for private purposes? It is succinct and clear and does not get us into the tangle we are in. Most citizens would relate to that.
Other than modernising it——
The notion of having to call in your local sergeant on a point of law is quite intimidating.
We are up to Superintendent rank at this stage.
I will look at the use of the words "private purposes". However, there were no video recorders in 1963.
So why was it in the Act? What was it covering?
I understand it was the making of film. I will see if we can use the language of the 1963 Act to better effect and I will return to the Deputy on it.
In the context of what the Minister of State said, I will withdraw the amendment.
Amendments Nos. 78 and 92 are related to amendment No. 77 and all may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 77:
In page 61, subsection (2), line 34, after "or" to insert "(otherwise than to a person's family member or friend for private and domestic purposes)".
This is more of the same in that this amendment qualifies the exception we have just discussed. The subsection sets out the position where the fixation in question is subsequently sold, rented or lent and so on. I am seeking to have it made clear that those situations relate to circumstances other than those involving a person's family member or friend for private or domestic purposes.
Deputy Owen's example of giving a copy of a Simpsons video to a neighbouring family on a rainy day to prevent the mother - it is usually the mother - cancelling a birthday party is dubious in terms of whether it is permissible. The Minister of State is saying that it is private use, which I suppose it is. However, it is necessary, given that the exception is further narrowed here, to make clear that "sold, rented or lent" does not include that situation.
I refer the Minister of State to section 135 which provides that loaning or renting without consent is an offence. As it is an offence, it is incumbent on us to be clear we did not intend that a loan to a family member or in the circumstances described by Deputy Owen would be deemed an offence.
Amendment No. 78 relates to where the fixation is offered or exposed for sale, rental or loan or otherwise made available to the public. The amendment proposes to insert the words "for reward". I cannot see why one would seek to transgress copyright law other than for reward. This protects the public in the innocent transfer of the very occasional copyrighted work under this section, which I continue to maintain the Bill would be better off without.
Apart from the quaint language, Deputy Rabbitte has highlighted a very crucial point in amendment No. 77. We are making it clear here that people can make private and domestic fixations, yet in the same section we are very seriously qualifying what they can do with those fixations. I can see that making multiple copies of a movie and selling them is an infringement of copyright. That is simple and straightforward. I can also see the necessity to protect against the situation where somebody sets themselves up as a renter, by making video copies of films themselves and renting them to their neighbours and friends for £1, which would be £2 less than the local shop.
However, the provisions in relation to lending are very serious. We all ask people to lend us their copy of the Berne Convention or the TRIPS Agreement and so on. People often lend as a gesture of friendliness. The example I gave, to which Deputy Rabbitte referred, is one where someone could be in trouble because of lending a copy of a film such as "The Jungle Book", "The Remains of the Day" or so on to their friend, sister, brother, mother or granny. If, for example, that granny were in a nursing home and she played the film in the nursing home's video recorder, the video would be played in an establishment which the Minister is going to proscribe by order. Therefore, on one hand it is not an infringement of copyright to make and use the copy in such an establishment, but under subsection (2) it could turn into an infringement of copyright.
I have somewhat more difficulty with amendment No. 78 because I think there could be an infringement by making something available to the public, even for no reward. I am interested to hear the Minister of State's view on that. However, he should seriously consider amendment No. 77.
Has the Minister of State defined in the Bill what is meant by "lending" and "loan"? That might help to clarify it. Lending libraries can charge a fee for lending, so lending need not be free. If that is the case, we might need a new definition of lending. Lending someone a video might not be "lending" in the strict sense of the word.
It might help in future legislation if all the definitions could be put at the front of the Bill. Definitions are scattered throughout this Bill and it can be quite difficult at times to find them. The Minister of State should tell the draftsman to put all the definitions at the front of the Bill, so that we can find them easily.
Deputy Stanton's comments are very relevant to our discussion in that the definition of "lending", which is on page 41, states that lending means "making a copy of a work available for use, on terms that it is to be or may be returned after a limited period of time, otherwise than for direct or indirect economic or commercial advantage, through an establishment to which members of the public have access". The most fundamental point about the amendment is that the definition of lending quite clearly refers to libraries and therein lies one problem in relation to the amendment. Deputy Rabbitte is clearly speaking here about individuals, as is Deputy Owen. The reference in the amendment to "otherwise than to a person's family", etc., does not gel with the definition of "lent".
What does this "lent" mean? Is it a different "lent"?
That "lent" means the libraries. Having said that, Deputies Owen and Rabbitte have raised the issue of "private use" being expanded somewhat and they have given examples. We gave a commitment to look at section 96(1). I am anxious to see if we can improve the wording to clarify the examples they outlined. I will do that and see if we can improve it. My officials will probably be delighted to be asked to do that. It is important to accommodate the concerns of members.
Most members referred to amendment No. 78 and I will deal with the comments made. Deputy Rabbitte wants to include "reward" and Deputy Owen is thinking along the same lines as me. In many cases works are made available for no reward, for vindictive reasons or whatever. It is better not to qualify this and to leave it as available to the public. Deputy Rabbitte's concerns will be met by leaving it as it is because works are made available, not necessarily for reward.
How stands amendment No. 77?
I am not minded to press amendment No. 78. However, I am not sure what the Minister is saying about amendment No. 77. Is he saying he will reformat the section and take on board the spirit of the amendment or will he come back with an amended section on Report Stage?
We have had some discussion on section 96 (1). What the Deputy has in mind is accommodated in this section. However, as I said, we will have to look at that again. I wish to ensure this type of situation is definitely covered. It will obviously be a new section 96 (1). The amendment will not work where the Deputy wishes to include it because the definition of lending refers to libraries. Therefore, we must try to accommodate this amendment elsewhere. We will re-examine section 96 (1). I thought the Deputy's concerns were catered for in that section. However, in saying we are revising section 96 (1), I will take the Deputy's views on board and do my best to clarify the matter further.
I do not think that is the point made by Deputy Stanton. He made a relevant point about the definition of lending in the Bill. However, the word "lent" here is not the same. This is a contemplated situation where an individual who has this fixation in their possession decides, in the manner prescribed here, to sell, rent or loan it. It is entirely different to what is contemplated in a library. The Minister is addressing Deputy Stanton's valid point about definitions but not as it is addressed in subsection (2). This is a different situation and deals with an individual who has made, other than for private and domestic use as encompassed by section 96 (1), a fixation and who sells, rents or loans it or laterally offers it for sale or rental in the manner described in the second part. It ought to be plain that giving it to a friend or a family member or whoever, in the circumstances we have been discussing, ought not come under the purview of that subsection.
I see where Deputy Rabbitte is coming from. There may be a need to change it. I notice this is a standing provision. Section 90 deals with the advertising of the sale of artistic work and uses the same standard language of "sold, rented or lent". The word "lent" specifically refers to libraries. If we wanted to achieve what Deputy Rabbitte wishes, we would have to include "references to lent shall be construed accordingly" or something to that effect. That is a possibility. However, I cannot accept the amendment as drafted because the language would not have any meaning unless we changed the definition of "lent". Perhaps one option would be to add to section 41——
I apologise for interrupting the Minister. I am not sure how, because there is a definition of lending in the Bill, the use of the term "lent" either in this section or in section 90 transparently refers back to that. How can it refer to a library in section 90? I do not believe that this was in the minds of those drafting section 96 (2). They did not contemplate a library situation but one where someone has infringed copyright and sells, rents or loans a fixation.
They are talking about where someone uses the cover of their home to make an infringing copy.
The danger is the marrying of subsections (1) and (2) and the inclusion of the term "lent". I could spend all day challenging the Minister - the definition of lending in section 41 is in no way comparable to its use in this section. I do not think this has been legally drafted.
The Minister indicated what inclusion would be necessary. I remind him we are also discussing amendment No. 92. I do not know if he has looked at its wording but it is similar in prescription to what the Minister described.
That amendment proposes that in this section "loan" means a loan for reward and in particular does not include a loan to a family member or friend for private and domestic use, and "lends" shall be construed accordingly. My advice is that "lending" has a specific meaning. However, it is clear that we must go back to the drawing board. I will ask my officials to go back to the AG's office and ensure members' understanding of lending is included in the Bill. I will ask my officials to discuss these amendments with the AG's office and I will report back to the committee.
We only agree to this section on the proviso that it is flawed and needs to looked at again.
The Minister has given a commitment.
Has the Minister taken into account the new technology involving digital photographs? Does the definition of photograph include digitisation? I recently pointed out that the Bill does not contain a definition of a copy. Has the Minister devised such a definition given that the section mentions a copy of such a photograph? Does it include a digitised copy which might be altered using computer technology?
That is right.
It could appear to be exactly the same, but technically it would be a totally different photograph. These points must be addressed.
Many of us did not have any experience of this area of modernity until recently. There is a practice in newspapers and other publications where, if they cannot get a photograph of somebody because he or she hides from the camera, they take a photograph of a news report and include it in the newspaper or publication. I presume in such circumstances copyright must be paid to the news agency or the programme. If somebody wanted an up to date photograph of a well known former politician who appeared on a programme recently, but he or she could not get it because the politician enters and leaves places quickly, would it breach the copyright of the programme to use a picture from it?
The definition of photograph is a recording of light, or any other radiation on any medium on which an image is produced, or from which an image may by any means be produced and which is not part of a film. This definition is included in page 27. I will come back to the Deputy on the issue of digital photography.
I have seen the practice to which Deputy Owen referred where an image from a television programme is used. They would have to pay for its use.
It would be a breach or they would have to pay for its use.
Has the Minister come up with a definition of a copy?
No. There is no definition of copy.
In terms of designated bodies, is this also a case where ministerial orders will be made? What bodies does the Minister have in mind in that regard? Would TG4 be one of them?
No. This relates to physical and mental disabilities and would involve a body such as the Council for the Blind. Section 99 makes special provision for people with handicaps.
Section 99(2) also contains the dreaded phrase "sale, rental or loan". It states
Where a copy 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.
The provision also involves the confusion about sale, rent or loan.
We will have to look at it again.
Regarding the designation, the section states "satisfied that the body is not established or conducted for profit". Does this mean the body cannot have a balance in the black at the end of the year? Would that be considered profit? If it is a good organisation, it will always have a certain amount of money. The committee received a submission from the Centre for Independent Learning, but I do not have it before me. I am sure the Minister also received the submission. Its concern may be addressed later, but the Minister will run into a problem in this area and he may have to give a commitment. He will have to get to grips with devising a proper definition of the words lent or loan everywhere they are used where they do not have the meaning envisaged in section 41. Otherwise many people may face prosecution for offences under section 135 in Chapter 13.
I will come back to that matter but the section relates to organisations which are not making the works for profit. Commercial companies would not be included. It relates to self-supporting organisations.
Is section 102 agreed to?
Chapter 7 relates to the new concept of paternity and moral rights. I do not wish to deal with this without preparing my material.
That is fine. Section 101 was agreed to and that is where the committee will adjourn. I thank the Minister, his officials and the members for their participation. As agreed earlier, the Select Committee will meet again on Thursday, 17 February, in G5 from 2.30 p.m. to 5.30 p.m. and resume its consideration of the Bill.
Members are reminded that the Joint Committee will meet with the Joint Committee on Health and Children on Tuesday, 22 February, to discuss the natural health product, St. John's Wort. This meeting will occupy the committee's regular Tuesday afternoon slot in G2 at 5 p.m.