Copyright and Related Rights Bill, 1999 [Seanad]: Committee Stage (Resumed).
SECTION 181.
Debate resumed on amendment No. 116:
In page 104, between lines 21 and 22, to insert the following subsection:
"(3) Permission to copy or publish an accurate text of any enactment or Bill or part thereof is hereby granted to any person subject only to such conditions as may be imposed for stated reasons in a particular case by resolution of both Houses of the Oireachtas.".
-(Deputy Stanton.)
Before our previous meeting concluded we were debating amendment No. 116 to section 181 which deals with Oireachtas copyright. We discussed the action that had been taken by the previous Administration and the current Government's position. The Deputies opposite were seeking greater clarity in this area and we debated the issue of clearer provision for the exercise of Oireachtas copyright than is provided for by the general terms of section 184(2), which allows for the Ceann Comhairle to exercise copyright on behalf of the Houses.
I am inclined to agree that more clarity and certainty are needed. However, since the matter, which involves legislating to govern an aspect of the business of the Houses of the Oireachtas, is, of its nature, serious, I would prefer to take legal advice on the possible changes prior to Report Stage. We will consider the contents of amendment No. 116 and attempt to draft a similar or more appropriate amendment for Report Stage. It is my intention to amend the section to take account of the points put forward by Members on the last occasion.
I am glad the Minister of State listened closely to what was said on the previous occasion. It is essential that the legislation runs in conjunction with the statement made by the previous Government - through the then Minister of State, Deputy Rabbitte - to the effect that all Acts and statutory instruments would be available to commercial publishers to reproduce with the necessity of paying royalties to the Government.
Does the Minister of State have in his possession any information which would make it absolutely clear that problems will not arise from the splitting of Government copyright into Government and Oireachtas copyright? There will be two separate channels of copyright for the Government and the Oireachtas. The copyright of statutory rules and orders made by a Minister of the Government or other authorised bodies will belong to the Houses of the Oireachtas. Secondary legislation will be introduced by the Minister of the day. Is that the copyright of the Government or the Oireachtas, once it is placed in the Oireachtas Library? There could be an anomaly and I am fearful about that inexactitude because secondary legislation is becoming popular and much of it is enabling and gives more powers to Ministers. I want to clarify whether the copyright on statutory rules and orders made by a Minister will also be transferred to the Houses of the Oireachtas similar to the copyright of Acts. It has been pointed out to us that the provisions for Government copyright appear to run contrary to a more open policy of making the materials more freely available, particularly following the introduction of the Freedom of Information Act, 1997. We now have permission to request all the background papers to the drafting of legislation. That is available under certain circumstances to anybody who asks for the minutes of a meeting at which a decision was reached on a specific section of legislation. Is that information covered by copyright?
Will there be a problem with regard to the assertion of copyright in legislation and the assignment of the copyright to the Houses of the Oireachtas in the Attorney General's office with regard to making the text of all statutory materials freely available on CD-ROM or on the Internet? The AG's office currently does that and this could become a problem area. I want to be absolutely certain that the Minister of State understands why some materials will be covered by Government copyright while others will be covered by Oireachtas copyright under the direction of the Ceann Comhairle or the Clerk of the Dáil, in the absence of the Ceann Comhairle. This issue was raised in the Seanad and I want the Minister of State to explain how that will happen. Will the Ceann Comhairle introduce an overriding rule on copyright or will the Dáil debate what it wants to copyright? Will committee reports be covered by different rules while they are being prepared?
For example, a ludicrous situation arose when somebody called me and asked for a copy of the minutes of a meeting of this committee. The person wanted to check a comment that was made. He was told that he could not have the minutes because they had not been approved by the committee but that he could have a videotape of the meeting. I do not say that copyright was involved but two different rules related to the same committee. The minutes could not be provided because they had not been adopted by the committee but a copy of the videotape was available. I do not know whether that was the correct reply but the person got in touch with me and asked for a copy of the minutes, which I did not have at the time. I hope this will not create a complicated morass of rules and regulations whereby the librarians in the Oireachtas, public, university or law libraries will not know whether they can copy legislation for people. Absolute clarity is needed in this regard given that Deputy Rabbitte wisely made it clear, when he was Minister of State, that the Government at the time wanted to free up the availability of Acts and other materials produced by the Houses of the Oireachtas.
I agree with Deputy Owen's comments on access to statutes. My view has not changed since I held office and the Minister of State seems to hold a similar view. He is presumably indicating that he will come back to us on Report Stage. He considers that it was a considerable amendment on his part to vest copyright on the Houses of the Oireachtas rather than on Government. On second thoughts I wonder whether he still believes that is the better idea. A number of us have had second thoughts as we plough through the legislation. Sometimes the Oireachtas is a more impregnable fortress than the Government. One can deal with the Government and a Minister is accountable to the House. I have been a Member for a while and I have never found my way around, for example, why the Ceann Comhairle makes some decisions and in terms of applying tradition and precedent from the time of Brian Boru, that office is the most impermeable barrier and the most scrupulous in terms of adhering to precedent. One could envisage certain circumstances where the advice given to the Ceann Comhairle would be more restrictive than that given to a Government Minister. I am willing to be persuaded either way.
It was interesting last week that when the Minister for Finance replied to the DIRT report, and in so far as one could require a Minister to respond to its myriad recommendations given the short time since its publication, it seemed that he made a reasonable fist of it. A number of months will elapse before it will be known whether what he stated will be done. However, the one area to which he made no reference, good, bad or indifferent, was parliamentary reform. A central, pivotal conclusion of the report was that we were in this situation because of the absence over the years of real parliamentary reform. Part of the problem is that those of us in favour of reform are less so when we enter Government. I do not know who will tackle parliamentary reform and it raises questions whether one might be better dealing in the traditional manner with the Government of the day than with the Houses of the Oireachtas.
Am I correct that it is the right of each House of the Oireachtas to regulate its own procedure under Article 15.10 of the Constitution and that should be reflected in the legislation?
The comments of the Chairman and Deputy Rabbitte are relevant to the debate because it could be argued that it would be much simpler to assign copyright to the Government and waive it, as Deputy Rabbitte did when he was in office, and the present Administration has gone along with that. It is simpler in terms of trying to deal with it. This issue was raised in the Seanad and it was appropriate that we had a lengthy debate on it at the last meeting. We have decided to try to deal with it on the basis of what was put forward, particularly by Senator Ryan, in the Seanad and, therefore, we must make definitive provisions on how Oireachtas copyright will work. We will give this our best shot and devise a solution.
The question of statutory instruments was raised. Section 181(1) refers to the copyright of any enactment vested in the Houses of the Oireachtas. "Enactment" is defined as "an Act of the Oireachtas or an instrument made thereunder"; therefore, statutory instruments are covered. Notes of meetings would be dealt with under freedom of information legislation. Deputy Owen is right; it is a complex web of activity which is more complicated when dealing with the Oireachtas. This will have to be given a great deal of consideration in this context. There is no argument between myself and Deputy Owen because we are both trying to do the right thing, which is to put a system in place which will achieve the result we all want.
In simple terms, giving it to the Government would probably be less complicated. A good case was made in the Seanad for going in this direction. Last week I argued for letting the Ceann Comhairle decide, which is a liberal approach almost parallel to what the Government will do. Deputy Owen has made a case for precise provisions, with which I agree. Perhaps the Deputy will allow me ask my officials to come up with the required proposal for Report Stage.
The Minister referred to the constitutionality of legislating for the Oireachtas in this Bill, given that the Constitution states the Oireachtas should do its own business. Has the Minister taken advice on that?
The best thing for me to do is to take advice from the Attorney General as we must be careful.
I understand this is dealt with in the section 17 of the compellability Act. Perhaps the Minister might look at that.
It is an infallibility Act in so far as it concerns us. I have received a number of invitations from the Ceann Comhairle to visit his chambers, especially the previous Ceann Comhairle, where I was always hosted with graciousness. I do not recall ever coming away happy as there was always a large number of reasons adduced why something could not be done. I think I would rather take my chances with the Government of the day.
Amendment, by leave, withdrawn.
Amendment No. 116a not moved.
Section 181 agreed to.
Section 182 agreed to.
SECTION 183.
Amendment Nos. 117, 118, 119 and 120 are related and may be discussed together, by agreement.
I move amendment No. 117:
In page 105, subsection (1), line 16, to delete "other than" and substitute "including".
I accepted an amendment on Report Stage of the Seanad debate to vest copyright in all Bills in the Houses of the Oireachtas and these technical changes within section 183 are considered necessary to achieve this aim.
Is subsection (2) deleted?
Yes, and subsections (4) and (5).
Amendment agreed to.
I move amendment No. 118:
In page 105, lines 19 and 20, to delete subsection (2).
Amendment agreed to.
I move amendment No. 119:
In page 105, lines 28 to 31, to delete subsection (4).
Amendment agreed to.
I move amendment No. 120:
In page 105, lines 32 to 35, to delete subsection (5)
Amendment agreed to.
I move amendment No. 121:
In page 105, between lines 43 and 44, to insert the following subsection:
"(8) Permission to copy or publish an accurate text of any Bill or part thereof is hereby granted to any person subject only to such conditions as may be imposed for stated reasons in a particular case by resolution of both Houses of the Oireachtas.".
It is logical for me to withdraw this amendment on condition the Minister comes back on the substantive issue.
Amendment, by leave, withdrawn.
Section 183, as amended, agreed to.
SECTION 184.
Question proposed: "That section 184 stand part of the Bill."
I take it this is part of what the Minister is looking at again.
Question put and agreed to.
Section 185 agreed to.
SECTION 186.
Question proposed: "That section 186 stand part of the Bill."
How does this relate to folklore?
The Copyright Act, 1966, does not contain a simple provision. Article 15.4 of the Berne Convention provides that in the case of unpublished works where the identity of the author is unknown but where there is every ground to presume that he is a national of a country of the union, it shall be a matter for legislation in that country to designate the competent authority which shall represent the author who shall be entitled to protect and enforce his rights in the countries of the union. The purpose of section 186 is to give effect to this article of the Berne Convention and it is considered to be self-explanatory, although perhaps unnecessary, as the intellectual property unit is not aware of any states which have established bodies to protect——
Which article of the convention is that?
Article 15.4. My understanding is that it may not be necessary but who knows what will happen with folklore? It is discussed in WIPO. It is a strengthening provision.
Under the Berne Convention, the director general or whoever shall at once communicate this declaration to all other countries of the union. So, the Minister will write to the countries of the union when this Bill becomes law, telling them we have introduced this section protecting unpublished works.
Question put and agreed to.
SECTION 187.
Amendments Nos. 121a and 121b are related and may be discussed together, by agreement.
I move amendment No. 121a:
In page 107, subsection (1), line 16, after "publication," to insert "except where less than one hundred copies are published,".
I tabled these amendments, with my colleague Deputy Stanton, because of the valid case made in a submission by book publishers. At the moment, 13 copies of a book have to be lodged at the expense of the publisher. The difficulty is that there are some expensive specialised format books and 50 copies or less might be published. The number of copies required to be deposited should be limited where a limited number of books are published. I chose the figure of 100 which is a small print run. Where less than 100 books are published, the number of copies laid in the various libraries should be limited. By the time 13 had been given out, there would be very few left for a limited audience, which would make it an expensive business. I hope the Minister will accept the amendment.
I have some reservations about this matter. I presume the argument is advanced on the basis of economics. If an expensive and rare book is published, at the quota mentioned by Deputy Owen, to comply with supplying the various institutions is an onerous commitment in that context. I accept the point. However, I would have thought that the rarer the book, the more important it is that these institutions ought to have a copy. If I wanted to access such a book, it would be unlikely that I would be able or want to purchase it - I would probably only be interested in one aspect of it. Therefore, is it not important that I should be able to go to my local library to access the book? Amendment No. 121b reduces the number of copies to two in the case of, for example, some place called the National University of Ireland - I attended University College Galway which is now called the National University of Ireland, Galway, or something ridiculous like that. I understand there are four constituent colleges of the NUI. I do not know how it would be decided to share out the two books between them. Since Cork would obviously insist on one of them, who would get the other one?
On a point of information, I only recommended that it be given to the National Library of Ireland, not to the universities. The National Library would be the depository for the minimum number of copies.
Is that in the case of amendment No. 121a?
Yes, I did not want to make a decision between Trinity and UCD.
I will not follow that line of thought. Before the Minister of State replies, I wish to point out that I have some reservations about whether we are engaging in some form of cultural vandalism.
I have just heard a good argument for the case I am about to make which is not negative. We are conscious of the merit of this suggestion which is aimed at reducing the burden placed on small publications run by the book delivery scheme while ensuring the National Library of Ireland is still in a position to develop its national reference collection of Irish published books. The issue is not a copyright matter but a book deposit one. I have just heard both sides of the argument; it needs to be made and there ought to be a debate on it.
We have had initial contacts with my colleagues, the Ministers for Arts, Heritage, Gaeltacht and the Islands, Education and Science and the Environment and Local Government, all of whom would have an interest in this matter. While we have not yet had a definitive response, nonetheless, that is how I propose to deal with this. In the course of the debate, I said the book delivery scheme, which had developed in an unplanned way over the years, was in need of review and what both Deputies said bears that out. I said it was my intention as soon as an opportunity permitted that my Department would conduct such a review in consultation with other interested Departments and groups. The point the Deputy made shows that we need to contact the parties involved, such as the deposit libraries and the publishing industry.
It is my aim that this review would produce clear options for the future of the scheme which could be brought before the Government in due course. I see suggestions such as those included in these amendments as being considered in the context of this review rather than on Report Stage of the Bill. I propose that this should not be dealt with in the Bill because, effectively, it is not a copyright issue. However, it is important and perhaps the Deputies would allow these amendments to be the subject matter of deliberations not just by my Department but also the other three I mentioned. We should initiate this review and deal with it in that manner.
Is the Minister of State saying that it will not be dealt with on Report Stage but that he might introduce amending legislation or have it dealt with through the Department of Arts, Heritage, Gaeltacht and the Islands? Could it be done in conjunction with other legislation? It is not good enough for him to say it is not a copyright matter. The Bill contains this instruction that books must be deposited, something one could argue should not be in the legislation. It is stated in the Bill as "delivery of certain materials to libraries". It may not have anything to do with copyright but it is included in the Bill, so we have no choice but to deal with it. I am happy to know the Minister of State might re-examine it. I also have certain concerns as does Deputy Rabbitte. Thirteen copies is a high number for a very small publication or run of a book. Perhaps there could be a happy medium between 13 and the two copies I suggested. Under the circumstances, we probably could withdraw the amendment.
We will see what is the outcome of this discussion. I am not entirely persuaded by Deputy Owen's position. In the context of my amendment No. 124, it is important whatever we decide and whatever number is considered appropriate that a fine ought not to leave a publisher free from the requirement. One of the books to which Deputy Owen referred might cost £500 and paying the fine may be a convenient way to avoid fulfilling the requirement. My amendment requires that, if a person is found guilty of whatever the requirement may be, that would not obviate the need for the publisher to comply with the section. They ought to have to comply with the section in any event.
The Attorney General's advice is that this amendment is not necessary as they would have to comply in any event. The Attorney General's problem is whether such a stipulation would have to be included in every section.
How stands amendment No. 121a?
Given that the Minister of State said he will study this and come back on Report Stage or at another time, we will take him in good faith and withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 121b not moved.
Amendments Nos. 122 and 125 are related and may be discussed together by agreement.
I move amendment No. 122:
In page 107, subsection (4), lines 45 to 47, to delete all words from and including "being" in line 45 down to and including line 47 and substitute the following:
"including:
(a) one of the forms in which the book is made available to the public, and
(b) electronic format,
and the person who first lawfully makes available to the public the book shall deliver it in the forms requested.".
This amendment relates to the legal requirement to deposit books. At present, the Bill stipulates that, before a book is delivered to any of the relevant libraries, the libraries may specify that the book should be sent to them in a certain form, one of them being the form in which the book is published. This changes that to include one of the forms in which the book is made available to the public and an electronic format. Apart from the change of allowing libraries to request the book in an electronic format, there is a shift in emphasis to make it available to the public rather than to publishers.
This arose because some people were anxious that books be made available in electronic form. They argued that it would make it easier for people who are challenged in various ways, especially physically, to access material. Furthermore, we are moving into an electronic age and we should encourage people to reduce their use of paper and make greater use of electronic media. Libraries will eventually have problems storing material if they do not have it in electronic form. Having material in that form might solve many of their storage problems.
The purpose of the amendment is to be disability-friendly. That seems like a good idea and I support it.
I agree with the thrust of the amendment. I will be pressing amendment No. 125, the effect of which will be to allow libraries receiving books under the book deposit scheme which opted to receive non-electronic copies to require also the delivery of electronic copies. The idea is that it would facilitate such libraries in making modified copies for use by persons with disabilities, a suggestion that was made at the consultative meeting of the committee by the Centre for Independent Living. Since I believe the committee and I are of one mind on this point, I do not need to say much more except that, to provide modified copies to persons with disabilities as envisaged by the Centre for Independent Living, it would be necessary for the libraries concerned to be designated by the Minister for the purpose of section 99. It is my intention to consider such designation from a positive standpoint in due course.
How stands amendment No. 122?
I am happy with that. It appears to do what we want and we will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 123:
In page 108, subsection (5), line 11, to delete "were" and substitute "was".
This is a technical amendment substituting "were" with "was".
Amendment agreed to.
I move amendment No. 124:
In page 108, subsection (9), line 32, after "£500" to insert "and in addition the person shall be liable to be ordered to comply with this section".
As I have said, the intention here is to prevent someone from circumventing the import of the section by paying a fine of £500. They will be explicitly required to comply with the section and my understanding is that the Minister of State said the advice of the Attorney General is that that is implied in the section and payment of the fine would not get someone out of complying with the terms of the section. I understand that that is what the Minister of State said.
I confirm that is the position. We can deal with the Deputy's intentions and take account of his concerns.
Amendment, by leave, withdrawn.
I move amendment No. 125:
In page 108, between lines 38 and 39, to insert the following subsection:
"(11) Where a copy of a book requested under subsection (1) is delivered in a form other than an electronic form, the Board or other authorities referred to in subsection (1) may request, in addition to that copy, a copy in an electronic form readable by means of an electronic retrieval system and on such request being made a copy in electronic form shall be delivered by the publisher to the Board or authority concerned.”.
Amendment agreed to.
Section 187, as amended, agreed to.
Section 188 agreed to.
NEW SECTION.
I move amendment No. 126:
In page 109, before section 189, to insert the following new section:
"189.-(1) Notwithstanding anything contained in this Part and subject to subsection (2), the copyright in legal tender notes issued, whether before or after the commencement of this section, by the Central Bank of Ireland (in this section referred to as ’the Bank’) or issued before such commencement by the Currency Commission, shall be perpetual and vests in the Bank.
(2) This Part is without prejudice to the copyright of the European Central Bank in legal tender notes denominated in the euro unit.
(3) Notwithstanding anything contained in this Part, the copyright in consolidated bank notes issued before the commencement of this section by the Bank or by the Currency Commission shall be perpetual and vests in the Bank.
(4) Notwithstanding anything contained in this Part, the copyright in coins issued under the Coinage Act, 1926, gold coins issued under the Currency Act, 1927, coins issued under the Coinage Act, 1950, and coins issued under the Decimal Currency Acts, 1969 to 1990, and the copyright in the artistic work defining the design of any such coin shall be perpetual and vests in the Minister for Finance.
(5)(a) This Part is without prejudice to the copyright of the European Community in the common face of coins denominated in euro or in cent, and in the artistic work defining the design of any such face, or to the assignment of that copyright by the Commission of the European Communities on behalf of the European Community.
Notwithstanding anything contained in this Part, the copyright in the national face of coins issued under section 11 of the Economic and Monetary Union Act, 1998, and the copyright in the artistic work defining the design of any such face shall be perpetual and vests in the Minister for Finance.
(c) Notwithstanding anything contained in this Part, the copyright in all coins issued under Part III of the Economic and Monetary Union Act, 1998, and the copyright in the artistic work defining the design of any such coin shall be perpetual and vests in the Minister for Finance.
(6) In the application of section 37(3) to any legal tender note or consolidated bank note or any coin to which this section applies, references in that subsection to the work as a whole or to any substantial part thereof shall be construed as references to the note or coin as a whole or to any part thereof.
(7) Chapter 6 of this Part shall not apply in relation to the copyrights referred to in this section.
(8) Coins to which this section applies and the artistic work defining the design of any such coin shall be deemed, for the purposes of section 172 of the Act of 1927, not to be designs.
(9) This section applies to coins issued under the Coinage Act, 1926, gold coins issued under the Currency Act, 1927, coins issued under the Coinage Act, 1950, coins issued under the Decimal Currency Acts, 1969 to 1990, and coins issued under the Economic and Monetary Union Act, 1998.".
This is a technical amendment. It establishes a special copyright regime designed to dispose of copyright interest in legal tender notes and coins issued both before, in the course of and after the changeover to the euro. The effect will be as follows.
The copyright in the artwork on notes and coins denominated in Irish currency will be unchanged, which is to say that it will continue to vest in the Minister for Finance in respect of coins and in the Central Bank of Ireland in respect of notes. The artwork on euro notes and the common EU faces of euro coins will vest in the Commission of the European Community, while the artwork on the nationalfaces of euro coins issued by Ireland and special coin issues will vest in the Minister for Finance.
This amendment follows exhaustive consultation between my Department and the Euro Changeover Board, which indicated that a new section would be required to reflect the final agreement to dispose of copyright in notes and coins between the European and Irish currency authorities. The new section, in effect, creates a new special copyright applicable only to the narrow field of currency, which reflects the very particular requirements of that field. We were very much in the hands of the expertsin this area and they came back to us withthis formula, which I recommend to the committee.
In whom is copyright now vested in respect of euro notes? Is it the Central Bank?
The artwork in the notes and the common EU faces of the euro coins will vest in the Commission of the European Community.
One learns something new every day. I was taken aback when I saw the length and breadth of our remit - that we were dealing with euro notes and copyright.
Amendment agreed to.
Section 189 deleted.
SECTION 190.
Question proposed: "That section 190 stand part of the Bill."
Where did this come from? It is fascinating.
This section has a very old history.
While the Minister of State is looking this up, I notice that in the reference to benchers of the "Honourable Society of Kings Inns", is spelt incorrectly. It is an Americanisation and such American imperialism spreads through the world, but it is spelt incorrectly.
It is spelt the same way in the 1963 Act.
I do not think the benchers would be pleased.
I think it is correct. Section 58 of the 1963 Act was inserted on the request of the benchers who are the governing council of the Kings Inns. Prior to 1836 the Kings Inns library was entitled to a free copy of every book published in the United Kingdom. In the Copyright Act of 1836 this right was discontinued in favour of a small subvention for the acquisition and repair of books. The Act was re-enacted with some modification in the Kings Inns Library Act, 1945. A preliminary examination of the table of statutes by my Department indicated that the latter Act is still in force without amendment.
Since the framework of relevant legislation appears unchanged since the enactment of the 1963 Act, it appears necessary to re-enact section 58 of that Act, otherwise the repeal of the 1963 Act could give rise to doubt as to the power of the benchers to dispose of books in the Kings Inns library, including those obtained under the depository provisions of the pre-1836 legislation. However, my Department was uncertain as to the need for section 190 and consulted with the Attorney General, who confirmed the necessity for such a section in the Bill.
He would. I support this enthusiastically, lest there be any question otherwise, but are these legal tomes only or is David Copperfield included?
I understand there are a lot of books of no particular national heritage value, whatever about developing legal education.
I presume the implication here is that the Kings Inns may sell them outside the country. Do they have to comply with any heritage requirements from the Department of Arts, Heritage, Gaeltacht and the Islands?
Not that I am aware of, but I can find out.
Is that because they have an exemption or because a different law applies to them?
I am told it is not a copyright issue, but we can have those issues examined. I presume the legal provision has been checked with the Attorney General.
The Attorney General should be required to submit a note to the committee.
The heritage aspect is relevant and I will have it checked out.
Question put and agreed to.
SECTION 191.
Question proposed: "That section 191 stand part of the Bill."
We are moving into a new part and perhaps the Minister of State will give us a lead in.
We are moving into performance and though there is some repetition, Members are trying to ensure progress and they will see we have dealt with some of these matters already.
Will the Minister be dealing with section 191——
We are moving to a parallel treatment here with performers.
By the simple decision to appear or not on stage or in studio, a performer carries in himself or herself the exclusive right to authorise his or her performance. However, from the moment modern technology intervenes - phonograms, broadcasting, etc. - a performer's performance may be fixed in ways which had never been envisaged. Performers have always demanded the right to exercise some control over the many uses to which their performances can be put.
Rights and performances should not be confused with performing rights, a term which is usually used to signify rights under copyright in relation to the acts of performing, showing or playing a work in which copyright subsists in public. For example, when a retail store wishes to play background music it will require the permission of the relevant copyright owner. On the other hand, if a person sings live on a recorded backing track, the live performance relates to the live singing only. There is also a public performance of the backing track and there will be an infringement of this unless permission to play the track has been obtained or a licence scheme is in operation and covers the playing of the particular backing track in question.
Existing legislation covering the rights of performers is the Performers Protection Act, 1968. Infringement of copyright is treated as an infringement of a property right, actionable by the copyright owner. On the other hand, the nature of the 1968 Act makes certain unauthorised acts connected with performances criminal offences which are punishable by fines. It is an offence, without the consent in writing of the performer, for a person to knowingly make a record directly or indirectly from or by means of a performance. It is also an offence to sell, let for hire, distribute for the purpose of trade or by way of trade, expose or offer for sale or hire a record made or deemed to have been made in contravention of the Act. It is also an offence to use such a record for the purposes of a broadcast or communication to the public.
Under the Act the court has power to order the infringing goods to be destroyed or otherwise dealt with as the court may think fit. Performers do not, therefore, derive any direct economic benefit from the provisions of the Performers Protection Act, as they would if they were awarded damages. This Act creates a range of criminal offences but it is not clear whether civil proceedings under which damages, for instance, could be awarded are available in respect of offences under the Performers Protection Act. We need to move on from that Act.
It is felt among interested parties in Ireland that the penalties contained in the Performers Protection Act, 1968, are inadequate and ineffective in preventing the infringement of a performer's rights. Enforcement of existing provisions is difficult, particularly in hi-tech areas. Knowledge is the essence of the offence. A person has to knowingly commit any of the acts restricted by that Act. It is essential that the offender knows that what he or she is doing is an offence in order to prove the offender's guilt. This places the burden of proof on the prosecutor.
It is felt by the Department that the onus of proof should be shifted from the prosecutor to the offender. Accordingly, it is proposed to achieve this in the new Bill by providing that an alleged offender will have to prove that he or she had reasonable grounds for believing that the consent of the performer had been obtained.
It is proposed to create two separate and distinct rights in the new Bill - a performer's right and a recording right - as in the UK 1988 Act. The effect of this proposal will be to give civil remedies, not only to performers, but to persons having exclusive recording contracts with those performers. This is a direct response to the growing problem of bootleg performances, namely, the recording of a live performance or the broadcast without the consent of the performer, and subsequent commercial exploitation, of that performance.
The ease of making good quality bootleg recordings due to technological advances is of particular concern to performers and recording organisations. Given the unprecedented advances over the past three decades in the technology for phonograms and audio-visual productions, reproductions and distribution - cable, satellite and so on - improvements to the existing protection for performers are essential.
Section 191 deals with definitions, section 192 deals with qualifying performances - world qualification. Section 193 concerns live performances, section 194 deals with the copying of those performances and section 195 concerns the dissemination of copies which involves the selling and broadcasting of performances. Members will find some degree of parallel treatment of performers as with copyright earlier. The debate on national treatment and world qualification is relevant to section 192. We may delete that and we will be dealing with that issue as it relates to an issue we already debated.
Section 196 deals with distribution and section 197 deals with rental and lending. Section 198 concerns sound recording.
The significant change is the shift of the onus of proof from the prosecution to the alleged offender. I am not suggesting that we are breaking new ground and we have done this once or twice in the area of intellectual property. However, we should not pass over this. What is the justification for such a dramatic shift?
The provision will be dealt with in section 193(4) which states:
In an action for infringement of the rights of a performer brought under this section, damages shall not be awarded against a defendant who shows that at the time of the infringement he or she did not know and had no reason to believe that consent had not been given.
This means that he or she has to show that there were reasonable grounds for believing that permission had been given. This comes back to the fundamental point about the onus of proof. There is a need in copyright law to protect artists and performers and there has been much bootlegging involving high technology. This danger is even greater now with the use of the Internet and so on. There are many ways in which people can infringe the copyright of individual artists and performers. A fundamental view which runs through the Bill is that we need to shift the balance in favour of artists. There is a strong appreciation of artists in this country and we should address this issue. We will have the opportunity to go through this step by step as this issue is comprehensively dealt with in section 199.
Question put and agreed to.
Section 192 agreed to.
SECTION 193.
I move amendment No. 127:
In page 111, subsection (3), line 22, to delete "and" and substitute "or".
Amendment No. 127 has already been discussed with amendment No. 74. Is the amendment being withdrawn?
Why are you urging me to withdraw this amendment, Chairman?
We already discussed this amendment with amendment No. 74 which was withdrawn.
I do not recall assenting to its withdrawal. It seems that a very minimal liberalisation is being sought. I do not wish to go over the argument again but there is a slight difference between "private and domestic" and "private or domestic". It seems it is not too much to require that the freedom be there for private or domestic use.
At the time I said we would consider it and I can confirm we are still considering it.
I am becoming increasingly concerned that the Minister of State is pouring treacle on us to get us to move on and that consideration will not be as productive as we think. On the basis that he is still considering the matter I will facilitate progress.
Amendment, by leave, withdrawn.
Amendment No. 130 is related to amendment No. 128 is related and they may be discussed together by agreement.
I move amendment No. 128:
In page 111, between lines 22 and 23, to insert the following subsection:
"(4) Where a recording, which should 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 the purposes and for all subsequent purposes.".
Some concerns had been expressed that recordings or copies made on foot of the exemptions for private and domestic use, which are contained in sections 193 and 194, may be subsequently dealt in. It has been suggested that a provision which clearly states that such dealing will be an infringement of owner's rights should be included in the Bill. Such a provision appears in many of the copyright permit Acts and it is imperative that such provision be included in the Bill. Otherwise the domestic copying exemption must be seen as so harmful to rights holders that the exemption cannot be permissible. I have given this matter further consideration and am of the view that such provision will be useful and I accordingly propose the above amendment. We are allowing for domestic use but not allowing for the sale of such material. The amendment is fairly straightforward.
The only issue which arises is whether loaning material or giving it to a friend is prohibited under this amendment.
It is about reproducing and selling. We had a debate previously on this issue. I do not want to start splitting hairs, but I think this amendment is necessary.
I have no problem in terms of a person selling, renting or offering material for loan. However, I want to be sure that the amendment does not tighten the provision too much in terms of domestic or private use. I want to be sure the provision will not exclude a person from making a copy at home and giving it to a friend to listen to.
I am anxious not to restart the previous debate, but at the time we said we would examine the issue of loaning material.
Can the Minister of State explain whether it will be possible to police this provision? How can it be policed?
It would be up to rights holders to assert their rights. The Deputy is correct in that there is no copyright police - we cannot have that - but the legislation is structured so that rights holders or their representatives can assert their rights. It would be a very serious matter if somebody discovered their music was being bootlegged and sold. There have been well publicised cases in which the Garda has been successful in raiding premises where they found all sorts of recording and video equipment. In many cases these publicised cases help greatly to highlight the illegal activities taking place.
Amendment agreed to.
Question proposed: "That section 193, as amended, stand part of the Bill."
This is the first chapter which deals exclusively with performers' rights. Performers are important with regard to copyright and it is important that we have a debate in this regard.
How is it that we are only on section 193? Was there a discussion as to why performers have no rights?
We debated sections 191 to 199.
And we are still discussing section 193?
Initially, we did not move amendments to sections, but had a broad discussion.
So a separate discussion took place?
That is a very unusual change of order and a breach of the committee's Standing Orders because it is usual to begin by discussing amendments.
Deputy Owen indicated that this is a new area and because of that we said we would get an overview.
Is the Chairman a performer? I know the Minister is a performer.
As the Minister said this is probably the heart of the chapter. It changes the onus of proof. We are now providing that damages shall not be awarded against a defendant who shows that at the time of the infringement he or she did not know and had no reason to believe that consent had not been given. It puts a lot of responsibility on a person to prove a negative, so to speak, and I wonder how it is possible. I would like the Minister of State to explain the section further and to give some practical examples as to how he thinks it will work in practice. It is a crucial change, as the Minister said in his introduction.
I raised the issue concerning the negatives and double negatives in general in the legislation with my officials. I will ask the draftsman if some of these negatives can be replaced with positives. These suggestions come from the draftsman. The presumption requires a defendant to show a reasonable basis for a belief that consent has been given, to put it in a positive way, before a full trial proceeds. I accept that in general in the legislation there are double negatives. I am in the hands of legal advisers and draftsmen.
Question put and agreed to.
SECTION 194.
Amendment No. 129 is in the name of Deputy Rabbitte. I remind the Deputy that we discussed it when debating amendment No. 74.
I move amendment No. 129:
In page 111, subsection (4), line 40, to delete "and" and substitute "or".
I recall the discussion. I thought the Minister of State was going to consider the amendment.
I said ten minutes ago that we were considering the matter and that is still our position.
Amendment, by leave, withdrawn.
I move amendment No. 130:
In page 111, between lines 40 and 41, to insert the following subsection:
"(5) Where a copy, 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.".
Amendment agreed to.
Question proposed: "That section 194, as amended, stand part of the Bill."
The section is about the rights of a performer to authorise or prohibit the making of a copy of a recording. Does this refer to giving a person the right to make a copy of a recording of a live performance? What is meant by the phrase "it is immaterial whether the copy is made directly or indirectly"? Is it to do with a qualifying performance?
It is copying performance.
What does it mean when it says that it is immaterial whether the copy is made directly or indirectly? How does one make a copy indirectly? I do not understand the technology of making a copy indirectly.
Is the Minister of State satisfied that none of the sections conflict with each other? Section 195 allows performers to authorise or prohibit recorded performances while section 198 proposes that they are entitled to be paid equitable remuneration every time the record embodying a performance is played, etc. How much dovetailing is there in these sections in relation to performers' rights and will this make it difficult for performers? Performers are not allowed to charge for copyright - they pass that over to the record company. This is one element of copyright between the author and the producers of the record, CD or whatever, whereby the money is collected by the record company. Performers are not a cohesive group, therefore, they do not have the right to exercise these rights. I want an assurance from the Minister of State that these provisions will mean something in reality.
On the question of indirect recording, we are talking about a singer performing while some other type of artistic work is going on in the background, for example, a play. We are not talking about the direct recording of one individual or one performance.
How would performers be able to exercise their rights under section 194? In reality, does it mean anything to a performer to have the exclusive right to authorise or prohibit the making of a copy of a recording? How would they exercise that right? I fail to see how a performer would be aware this was happening.
In this case the performer would have a contract with a record company and take civil proceedings.
Is the reproduction right of a performer defined in the Bill?
It is defined in section 194.
Subsection (2) reads, "There shall be a right of a performer conferred by this section which shall be known . . . as the 'reproduction right"'. A reproduction right is the right of a performer.
Question put and agreed to.
SECTION 195.
I move amendment No. 130a:
In page 112, subsection (1), line 1, after "right" to insert ", subject to the right of the performer to receive equitable remuneration in accordance with section 198(a),”.
Such a provision was included in other sections to ensure performers would get equitable remuneration when making available to the public copies of recordings of qualifying performances. The amendment would mean that if a performer was giving the right to authorise or prohibit the making available to the public of copies, they would be able to get the equitable remuneration to which they would be entitled. The performers are the ones who have fallen through the net in the legislation, so to speak. The legislation covers those who write works and reproduce it on CD or whatever, but performers, from the point of view of copyright, are not covered. They must depend on someone else to give them a portion of the fee which is collected.
The question of equitable remuneration needs to be looked at but perhaps we can leave it for the moment. This goes back to trying to arrive at a right balance. I note what Deputy Owen has said and will give the matter further consideration.
I thank the Minister of State for this because we have been making this point throughout the discussions. However, this is the heart of the Bill and while the licensing agencies and performers should get their entitlement, those on the other side must also be considered. The provision must be seen to be fair.
There will not be time on Report Stage to debate all the substantial changes. Opposition members have limited resources. The Minister of State has great help but, obviously, he needs more help. I am concerned that if the Minister of State comes back on Report Stage with substantial amendments, we will not have time to debate them fully.
This is one of the crucial aspects of the Bill and we recognise that substantial changes are needed on the issue of equitable remuneration. The collecting agencies are not happy with what is happening, neither are the hoteliers, vintners and others. I do not know whether it might be possible to have a meeting before Report Stage to consider this aspect. Otherwise we will be faced with these changes on Report Stage and we will not have the time to check them properly.Would it be possible to address this matter separately?
I will do my utmost to deal with the issues as quickly as possible. There is the question of resources on my side also. I will tell the full story some other time. One of my officials is ill at present. I wish him the very best.
I can produce a briefing note for Opposition party spokespeople, perhaps when we have completed Committee Stage. I depend on my officials to work as quickly as they can because the work on this Bill has been tortuous. I hope none of us will have to deal with a Bill like this again but the work has to be done. I value the constructive approach adopted by the Opposition and it is appropriate that I prepare a briefing note on these issues. I can consult with the Opposition as to where the pressure points are. The production of the note will be subject to the ability of my officials and I hope the Opposition will be flexible. We can consult on the issues which need to be addressed.
That will be very helpful.
Amendment, by leave, withdrawn.
I move amendment No. 131:
In page 112, between lines 38 and 39, to insert the following subsection:
"(8) Without prejudice to subsection (7), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify-
(a) the name and address of the person claiming to be the owner of the rights in the recording concerned,
(b) the grounds that the person requesting the removal of material has for such removal, and
(c) a list of the material which is to be removed.".
Amendment agreed to.
I move amendment No. 132:
In page 112, between lines 45 and 46, to insert the following subsection:
"(9) Without prejudice to section 198, where a recording of a performance is-
(a) shown or played in public,
(b) included in a broadcast or cable programme service, or
(c) made available to the public by wire or wireless means in such a way that members of the public may access the recording from a place and at a time individually chosen by them including the making available of copies of recordings through the Internet.
the right conferred by this shall be deemed to be satisfied by the payment of equitable remuneration.".
Amendment agreed to.
I move amendment No. 132a:
In page 112, between lines 45 and 46, to insert the following subsection:
"(9) When the owner of a recording of a performance which has been lawfully made available to the public authorises a licensing body as defined in section 249 to act on its behalf, then that licensing body shall register in accordance with section 264 and shall set up a licensing scheme in accordance with section 249.”.
This amendment returns to the thorny issue of the need for licensing bodies to be registered. The Minister has given a commitment with regard to the establishment of an obligatory register of licensing bodies.
Amendment, by leave, withdrawn.
Section 195, as amended, agreed to.
Sections 196 and 197 agreed to.
SECTION 198.
Question proposed: "That section 198 stand part of the Bill."
This section states that a performer "has a right to equitable remuneration from the owner of the copyright in a sound recording". This means that a performer may be paid by the group which collects the money for the person who owns the copyright every time the recording is played, broadcast on a cable network or made available to the public by wireless and so on.
Does the Minister think there is a conflict between sections 195 and 198? Section 195 refers to the exclusive right of performers to collect royalties for public performances, broadcasts, cable transmissions and availability on the Internet. We went through that section quickly. Performers are also given the right to obtain equitable remuneration under section 198. Is section 198 to apply only to sound recordings and section 195 to all other types of recording?
Is that clear? I hope the wording will not cause confusion. Is there any question of a performer being allowed to charge twice?
Section 198 refers to sound recording only. An additional safeguard is needed there.
Could a recording which is covered by section 195 not also be called a sound recording? Public performance, broadcasting and cable transmission could also be of a sound recording. I wish to ensure that a discrepency between the two sections does not allow a performer to authorise or prohibit under both sections.
On page 28, sound recording is defined as "a fixation of sounds, or of the representation thereof, from which the sounds are capable of being reproduced, regardless of the medium on which the recording is made, or the method by which the sounds are reproduced". That is quite a broad definition.
It has been suggested to me that section 195 may be intended as an anti-piracy provision preventing the use of bootleg recordings of live performances. It could equally be the case that a performer is given the right to be paid twice.
Section 195 refers to all performances. Section 198 relates to the downstream where a recording is played in public. It refers to further use of a sound recording.
Section 195 gives a performer an exclusive right to collect royalties for public performance, broadcast, cable transmission and Internet distribution. Section 198 gives a performer the right to receive equitable remuneration from a record company for the same public performance, broadcast, cable transmission and Internet distribution. Is this an added right? This matter has led to much discussion among performers and those who are interested in this legislation.
This section refers particularly to the music industry, especially to the playing of recorded music in discos, on radio stations and so on, where the record company comes into play when acting on behalf of the performer. Deputy Owen's concern is that there is duplication in the two sections.
Section 195 says that a performer "has the exclusive right to authorise or prohibit the making available to the public of copies of a recording of the whole or any substantial part of a qualifying performance and it is immaterial whether the copy is made directly or indirectly". Section 198 states that a performer "has a right to equitable remuneration from the owner of the copyright in a sound recording". Section 195, which deals with the making available to the public copies of recordings of qualifying performances, could be construed as giving them two rights. Is that the Minister of State's intention? The controller may have to make a judgment in the matter.
I will ask my officials to double check the matter, which is relevant to the debate on equitable remuneration. We will explain precisely how these issues will be dealt with prior to Report Stage.
Has amendment No. 132 been discussed?
It was discussed with amendment No. 21, which was agreed to.
It has been put to me that while it could be said that the Bill states that performers are entitled to be paid twice, amendment No. 132 effectively removes any mechanism whereby performers will be paid. Amendment No. 132 reads, "Without prejudice to section 198... the right conferred by this shall be deemed to be satisfied by the payment of equitable remuneration.”. How stands section 195?
Amendment No. 132 was discussed at some length with amendments Nos. 21, 29 and 30. I have given Deputies an assurance that there is a need to look at this important matter again and that I will return to them prior to Report Stage. Deputy Stanton dealt with it earlier.
The Bill will not be worth the paper it is written on if the collection agencies cannot collect the equitable remuneration to which performers are entitled. We are saying to performers that they are entitled to royalties but that they should not ask to find a way to collect them.
Record companies and performers had exclusive rights to prevent digital downloading on the Internet. Amendment No. 37 removed this right from the record companies. Amendment No. 132 will do the same in the case of performers who will not now be able to enforce this right themselves or, as is the norm internationally, through the record companies. Is there any way the Minister of State can assure performers that the money to which they are entitled will be collected and paid to them? A person may promise to pay equitable remuneration but in most cases this will be uncollectable as he or she may not have a fixed address. It is difficult to sue in cyber space. I am sure the Taoiseach is very angry about the use of his name. I have just discovered that the name of my sister, Mary Banotti, is also being used.
We will all have to rush out and register our names. I am sure somebody will want to use the Minister of State's name——
What is being advertised?
If one discovers that one's name is being used in cyber space how does one get paid? There may be no method of calculating how many times the site has been downloaded.There is a danger that we could be making piracy legal.
We are aware of the problem which is being examined as part of the review.
I hope Deputy Owen appreciates that I have allowed her much latitude as she was in the House for the Order of Business.
You will be glad to learn that I raised the issue of the groceries order with the Minister.
I am delighted to hear it.
Question put and agreed to.
Sections 199 and 200 agreed to.
SECTION 201.
I move amendment No. 133:
In page 116, line 31, to delete "or" where it secondly occurs.
This is a technical amendment.
Amendment agreed to.
Section 201, as amended, agreed to.
Section 202 agreed to.
SECTION 203.
Question proposed: "That section 203 stand part of the Bill."
The words "illicit recording" appear in this section. Can the Minister of State give an assurance that following the passage of the Bill pirated tapes on sale on the streets of this city and many other cities and towns and at markets will be a thing of the past, rectifying illegalities and infringements of the law for performers, writers and authors to ensure they benefit from their own works? It is a particularly virulent practice. Young teenagers who happily buy pirated copies on the street will have to learn that writers and performers deserve to be paid for their talent and penmanship and performance of songs. I hope the Minister of State will be able to reassure us that this practice will be stamped out at markets and other places where illicit tapes are sold.
Our number one motivation is that we clean up this area. We are introducing strong legislation to deal with bootlegging and pirating to ensure artists who go to the trouble of writing and performing music are protected. While I am aware that there are conflicting interests, I am at one with the Deputy in that objective.
Under section 202(1) (b) it will be possible to import into the State an illicit recording for one’s private and domestic use. Am I reading the Bill correctly?
That section has been agreed to.
The Minister referred to illicit recordings. You are moving very fast. We will slow you down by asking questions on every section. Give us a chance.
We are anxious to ensure we do not leave anything out.
It is a question of striking a balance. We are also trying hard to protect the consumer in terms of domestic use.
Question put and agreed to.
NEW SECTION.
I move amendment No. 134:
In page 117, before section 204, but in Chapter 2, to insert the following new section:
"204.-Where the rights of a performer conferred by this Part are infringed by a public performance of a recording of the performance, or by playing or showing the recording in public, by means of apparatus for-
(a) playing sound recordings,
(b) showing films, or
(c) receiving sounds or images or any combination of sounds or images, or the representations thereof, conveyed by any means, the following persons shall also be liable for the infringement:
(i)a person who supplied the apparatus, or any substantial part thereof if, when he or she supplied the apparatus or part thereof——
(I)he or she knew or had reason to believe that the apparatus was likely to be used to infringe the rights of a performer conferred by this Part, or
(II)in the case of apparatus the normal use of which involves a public performance, playing or showing, he or she had reason to believe that it would be used to infringe the rights of a performer conferred by this Part;
(ii)an owner or occupier of premises who gave permission for the apparatus to be brought onto the premises if, when the owner or occupier gave permission, he or she knew or had reason to believe that the apparatus was likely to be used to infringe the rights of a performer conferred by this Part; and
(iii)a person who supplied a copy of a sound recording or film used to infringe the rights of a performer conferred by this Part if, when the person supplied it, he or she knew or had reason to believe that what was supplied, or a copy made directly or indirectly therefrom, was likely to be used to infringe the rights of a performer conferred by this Part.".
Serious concern has been expressed regarding the absence in respect of performers' rights of any provision parallel to that contained in section 47 in the copyright part of the Bill which imposes liability on occupiers of premises, suppliers of apparatus and suppliers of copies who facilitate infringement of copyright. I have examined this matter further and I agree that there is no rationale for not providing this protection for performers' rights holders. Accordingly, I am suggesting this amendment. I made the point earlier that parallels can be found with matters that we have already dealt with in copyright legislation. This is another positive amendment to protect performers' rights.
Amendment agreed to.
Sections 204 to 207, inclusive, agreed to.
SECTION 208.
Question proposed: "That section 208 stand part of the Bill."
This is about secondary infringement. Could the Minister give an example of a secondary infringer?
This is a new provision. Section 208 is being proposed to strengthen the hand of copyright and performers' rights owners in respect of pirates. The Department of Enterprise, Trade and Employment has received very strong representations over the years on the need for new provisions to deal with piracy. We discussed this a moment ago. Section 208 goes some way towards meeting the requirements of those fighting piracy. What is envisaged is that a person who makes, deals with imports, or possesses the means for making recordings of a performance, and articles specifically designed or adapted for such a purpose. will infringe the rights of a person having recording rights in relation to a performance if done without the consent of that person or the performer in certain circumstances and with the knowledge that he or she knew or had reason to believe that it would be used to make illicit recordings. That refers to big recording machines.
These sections go together. One refers to the person who imports the illicit recording and section 208 covers where that person goes to somebody else who has copying equipment. However, it is silent on what exactly happens to these people. It is silent as to punishments, sanctions and so on. It just says it will be an infringement.
That will be covered in another section. Can this equipment be seized?
In what section will that be covered?
It is dealt with in Chapter 6.
Question put and agreed to.
Section 209 agreed to.
SECTION 210.
Question proposed: "That section 210 stand part of the Bill."
Do we have a definition of "fair dealing"? Perhaps the Minister could give us some guidance. I know it means the making use of a performance or a recording which has been lawfully made available to the public for a purpose and to an extent reasonably justified by the non-commercial purpose to be achieved. The concept of fair dealing is one that has given rise to much discussion on this legislation. Does the Minister have a useful note on it?
Section 210 provides an exception for fair dealing with a performance or recording thereof for the purposes of criticism or review, or for the reporting of current events. Section 2(3)(b)(ii) of the Performers' Protection Act, 1968, provides a defence against prosecution where the making of a recording of a performance was done for the purpose of reporting current events and it was not made for a different purpose. Section 9 of that Act also contains a defence against prosecution where a record, film, broadcast or communication to the public was made only for the purpose of reporting current events.
Section 210(1) continues the exceptions from the 1968 Act and extends them to provide exceptions for fair dealing for the purposes of criticism or review. It clearly states that there shall be no infringement where a person engages in fair dealing with the performance or recording for the purposes of criticism or review or reporting current events. A similar provision has been included in the copyright part of this Bill as section 50. I recall the debate on that in respect of copyright work. Paragraph 2 of the Second Schedule to the UK Copyright Act, 1988, provides a similar exception.
The principle of fair dealing is designed to allow people to use protected material in a manner which will achieve their reasonable aim without unreasonably impinging on a performer's rights either to earn money from his or her performance or to exercise control over the distribution, reproduction, etc., of performances or recordings thereof. Fair dealing is not intended to in any way undermine the rights of a performer or person owning recording rights. There is no stipulation in section 210 that fair dealing should be subject to the notification of sufficient acknowledgement, as is the case in the copyright part, section 50. This condition is excluded for the simple reason that such acknowledgment would either be unnecessary or superfluous because it would be obvious whose performance it was, or because the report would be about the performance or performer anyway, or would make such reporting cumbersome and very difficult to research if a long list of acknowledgments had to be provided in every news report. The Department's view is that this is a necessary and sensible approach to take and the same approach was taken in the UK in its 1988 Act.
Let me give an example of what I think that means when it is boiled down. On Saturday morning there is a programme on RTE 1 to which I listen on my way to my clinic which plays snippets——
No, it is not "Playback". I was on that a few times, as I am sure the Chairman was also. This is a programme of new music, new songs. A snippet of a new recording is played and experts in the studio comment on it. Is that an example of when fair dealing could be used and the makers of that programme would not have to get permission to play that piece of music, irrespective of how good or bad the critique of it might be? Is that what the Minister is talking about when he refers to fair dealing with a performance or recording for the purposes of criticism or review?
What have I just described, if not——
This allows people to use a piece of music or a recording in respect of which they would otherwise have to get the permission of the performer or the owner of the copyright.
I am told that the provision in relation to criticism relates to journalists.
I am not criticising the criticism. I am asking whether that is an example of where the producers would not have to seek permission. Is that the type of programme for which one would not have to seek permission? It is not playing the whole song or recording, just a part of it, to allow it to be discussed.
I will have to check. I understand that the recording company would have to have some agreement with RTE in that case. I can have this checked and come back to the Deputy.
The section refers to fair dealing with a performance or recording for the purposes of criticism or review. The only purpose of the programme I have described is to criticise or review a new song which is on the market. I am trying to understand what would be covered. I can understand that an arts programme can show a piece of a play for the purposes of review or discussion. If what I described is not covered, what is?
I would have to get legal advice on individual cases as to whether a performance is played for review or just for entertainment. There are so many rights involved that I would have to get legal advice. I would be happy to do that.
With respect, this section then means nothing.
What the Deputy is saying is probably correct because subsection (2) includes the words "made available to the public for a purpose and to an extent reasonably justified by the non-commercial purpose to be achieved". Given that that would be a non-commercial purpose I think the Deputy is right in her interpretation.
If what I describe is not the kind of example that would be covered under the provisions of section 210, what is the purpose of the section? It seems to exempt any programme maker who uses a recording for the purposes of criticism or review, of that or another performance or recording, or of a work, for the purpose of reporting current events - they shall not infringe any of the rights. Does it cover only current events?
Subsection (2) refers to a recording which has been lawfully made available for the non-commercial purpose. I would think that what the Deputy has outlined is covered.
I will come back to it on Report Stage. I have to get absolute clarity because this is Committee Stage. That is the reason I am not precise. If I said the Dave Fanning type programme was an example, Deputies might find out that, in some cases, he might make a reference to something being courtesy of a company. I am conscious of giving a precise example but I will return to it on Report Stage.
Question put and agreed to.
SECTION 211.
Question proposed: "That section 211 stand part of the Bill."
Section 211(1) reads, "The rights conferred by this Part are not infringed by the inclusion in an incidental manner of a performance or recording in another recording or work". I do not wish to go back over this again but the Minister of State agreed to have a further look at it with a view to making it clearer because it appears to be contradictory.
All that is being asked is that the Minister of State come back to it on Report Stage.
I remember saying I would come back to it.
Question put and agreed to.
SECTION 212.
Question proposed: "That section 212 stand part of the Bill."
We have discussed this area. This section, which is a mirror image of the section on written work, deals with the recording of a performance. At that stage the Minister of State was open to our concerns for access and copying of a performance for the purpose of instruction. We had a long discussion about the libretto for the school play and whether they could make more than one copy of it. I hope the Minister of State will take on board our concerns that for educational purposes there would be as little red tape as possible, without the owners of copyright losing too much.
Question put and agreed to.
SECTION 213.
Question proposed: "That section 213 stand part of the Bill."
This is another mirror image here of what happened on the copyright side and the Minister of State said he would come back to it on Report Stage.
There is general agreement that we should do that. That process is ongoing.
The Minister of State may come back to this again.
Yes, it is another important point to come back to for Report Stage.
Question put and agreed to.
Section 214 agreed to.
SECTION 215.
Question proposed: "That section 215 stand part of the Bill."
This section states:
The rights conferred by this Part are not infringed by the lending of copies of a recording of a performance by an educational establishment or by an establishment to which members of the public have access as prescribed by the Minister under section 57.
We had a long discussion on what the Minister might be inclined to prescribe. Has the Minister of State anything in his notes to give an indication of the kind of establishment to which members of the public have access as prescribed by the Minister? I can understand an educational establishment but what are the other likely places he might prescribe?
When speaking to the Ministers for Education and Science and the Environment and Local Government I said that we may be talking about libraries also.
I shall consult with my two ministerial colleagues on this issue.
Question put and agreed to.
SECTION 216.
I move amendment No. 135:
In page 121, subsection (2) (c), line 40, before “library” to insert “prescribed”.
Amendment agreed to.
Question proposed: "That section 126, as amended, stand part of the Bill."
I raise an issue which was raised with us by TG4. TG4 is anxious that it would be a prescribed body under this section. A number of sections require the Minister to designate a body, an archive or whatever else. When one is prescribed one is allowed to do certain acts which would not otherwise be permitted. TG4 is anxious to be designated. Has the Minister of State any thoughts on this matter which was raised earlier under another section?
I will consider TG4 when considering the order under this legislation.
Question put and agreed to.
Section 217 agreed.
SECTION 218.
Question proposed: "That section 218 stand part of the Bill."
From a technical point of view, because it could be a mistake on the part of the Opposition, we tabled a number of amendments to the earlier sections dealing with libraries and archivists which we did not repeat in these sections.
Have any of them been accepted?
I can safely say that any technical amendments accepted earlier would be carried through.
Yes, my fear is that we would not be as familiar with each section. Perhaps they can be put in wherever there is a need.
We will record that for Deputy Owen.
Question put and agreed to.
Section 219 agreed to.
SECTION 220.
I move amendment No. 136:
In page 122, subsection (1), line 40, before "archive" to insert "prescribed".
Amendment agreed to.
Section 220, as amended, agreed to.
SECTION 221.
I move amendment No. 137:
In page 123, subsection (1) (b), line 9, before “archive” to insert “prescribed”.
Amendment agreed to.
Section 221, as amended, agreed to.
Section 222 agreed.
SECTION 223.
Question proposed: "That section 223 stand part of the Bill."
The section deals with copies of recordings required to be made as a condition of export. Where one is about to make a recording of an old recording of music it "may not lawfully be exported from the State unless a copy of it is made and deposited in a library, archive or other institution . . . it shall not be an infringement of any right conferred by this Part to make that copy". Who will implement that rule? Is it a prerequisite for sending a recording of a performance of a cultural interest abroad that one has to get an export licence? I was of the view that one could send it in a padded envelope or avail of the services of DHL, a company which takes material abroad. Is the export licence tied in with some other legislation under the Department of Arts, Heritage, Gaeltacht and the Islands and, if so, why is there not a cross reference?
This matter came up before and it would relate to something of historical interest where we would keep a copy in Ireland. As far as I know, the export licence is not required. This provision is necessary because the Minister for Arts, Heritage, Gaeltacht and the Islands introduced such a requirement. That is the reason it is being included.
The Minister of State is anticipating a possible change of legislation by the Minister for Arts, Heritage, Gaeltacht and the Islands. He or she, in years to come, might introduce a law that requires an export licence to export a recording of a performance of cultural or historical importance, yet he will not put in droit de suite? This is mind-blowing. The Minister of State does not even know whether anybody will ever need an export licence. He is saying that currently they do not need an export licence and, therefore, somebody can send off a recording without having to deposit the copy in a library or archive. It is a good idea, if something is of such historical and cultural importance, that we are absolutely sure a copy is kept in case it is lost on the high seas or in the skies. The Minister needs to go back to the drawing board on that.
I suppose in legal terms this is a heritage issue, not a copyright right issue in that sense. It would be the Minister for Arts, Heritage, Gaeltacht and the Islands who would make provisions in this area. Obviously I am happy to check this out for the Deputy. I think Deputy Daly mentioned this on a previous occasion but I will do some necessary communicating with——
I recognise that this section is just making it a non-infringement of copyright, but I am questioning the reason this section is being included. The Minister is saying that where a sound recording may not be lawfully exported from the State unless a copy is made, it shall not be an infringement. Is it currently necessary for somebody who is sending a recording of a performance abroad to deposit a copy in a library and to get an export licence? Nobody will know it is being exported unless one is required to get an export licence. How will they know otherwise, or is this just a belt and braces approach for the future?
This relates to the making of the copy. I will have to confirm this for the Deputy by talking to the Minister for Arts, Heritage, Gaeltacht and the Islands.
If the officials thought this section should be included there must have been some lobbying by the Minister for Arts, Heritage, Gaeltacht and the Islands.
It is to allow the copying without infringement.
Yes, but is it necessary now to have an export licence? How else will anybody know that somebody has made a copy and is sending it abroad? I know it is a matter for the Minister for Arts, Heritage, Gaeltacht and the Islands.
I will have to find out if section 50 is enforced. We can establish that. It is in the arts area but I will find out if that is enforced.
Question put and agreed to.
SECTION 224.
Question proposed: "That section 224 stand part of the Bill."
Where does this section tie in with the earlier discussion? It deals with parliamentary and judicial proceedings. It states: "The rights conferred by this Part are not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings". We are talking about sound recording. Why is the word "parliamentary" included here, and what is the purpose of this section?
I understand there is no similar provision to section 224 of the Bill in the Performers' Protection Act, 1968. Paragraph (8) of Schedule 2 of the UK Copyright Bill, 1988, contains an identical provision to section 224. Section 224 provides that performances or recordings thereof may be used in any manner by courts and by the Houses of the Oireachtas or the European Parliament for judicial and parliamentary purposes respectively and for the making and issuing to the public of a report of these proceedings by the Parliament and court in question. A similar provision was included in section 67 in respect of copyright and the Department is of the view that section 224 is in line with the exceptions and limitations permitted under Article 10 of the rental and lending directive, Article 50 of the Rome Convention, Article 16 of the WPPT and Article 14 of TRIPS.
Question put and agreed to.
SECTION 225.
Question proposed: "That section 225 stand part of the Bill."
If a statutory inquiry wanted, for the purposes of the inquiry, to play something that was on radio, could they do that and issue it as part of the recorded report?
Question put and agreed to.
SECTION 226.
Question proposed: "That section 226 stand part of the Bill."
Will the Minister of State explain what is meant by this section?
This is a straightforward provision which simply provides that material which is part of any public records and which is open to inspection by the public may be copied and that any copy supplied to a member of the public will not infringe the rights conferred by this part of the Bill. The need for a provision along these lines has been highlighted in the recent past by the passage of the National Archives Act, 1986, and the Freedom of Information Act, 1997. A proposal for further change in the freedom of information arena arose in recent years. An exception in respect of access to publicly available material on statutory registers on the copyright side was provided for in section 69 of the Bill. That section should be revisited in the context of section 226.
Is there any limit on the copying? There is no cross-referencing of this with any of the other sections of the Bill which have to do with a limited amount of copying? Could somebody make a lot of copies or just one? I think it states that just "a" copy may be supplied.
The next section deals with that.
Question put and agreed to.
Sections 227 and 228 agreed to.
SECTION 229.
Question proposed: "That section 229 stand part of the Bill."
Will the Minister give an overview of this section?
The object of section 229 is to create an exception allowing "second-hand" purchasers of recordings of performances in electronic form the same rights in respectof the copying of such recordings as wouldhave been enjoyed by the original purchasers, subject to appropriate protections for the interests of performers and recording rights holders. This provision closely parallels that contained in section 82 in respect of copyright works. The reasoning underlying section 229 is the same as applies in relation to section 82. Given the uses and dealings to which recordings and performances are subject, an exception of this nature may be even more important in this area than was the case in relation to copyright works.
Could the Minister humour us for a minute and describe this section in plain English? Are we talking about somebody who has a tape, CD or whatever in electronic form on which it states that further recordings cannot be made? Are we back into the preserve of the sitting rooms of Ireland, or what are we talking about?
An example would be where somebody had a CD that was passed on to somebody else, sold or whatever else, that person could use that CD. This was a practical exception in this area.
If one passes it on to someone else, that person is free to use it in the same way as the person who passed it on used it.
Subsection (5) states that this section shall not apply to a recording purchased before the commencement of this Part. I am not sure that I understand this section. The section states:
(1) This section applies where a recording of a performance in electronic form has been purchased on terms which expressly or impliedly allow the purchaser to make further recordings in connection with his or her use of the recording.
(2) Where there are no express terms-
(a) prohibiting the transfer of the recording . . .
That is a standard provision regarding the position prior to the introduction of this Bill.
Question put and agreed to.
Sections 230 and 231 agreed to.
SECTION 232.
I move amendment No. 138:
In page 127, subsection (3)(a), line 5, to delete "private" where it firstly occurs.
Amendment agreed to.
Section 232, as amended, agreed to.
NEW SECTION.
I move amendment No. 139:
In page 127, before section 233, to insert the following new section:
"233.-(1) Subject to subsection (2), it is not an infringement of any of the rights conferred by this Part to cause a sound recording, broadcast or cable programme to be heard or viewed where it is heard or viewed-
(a) in part of the premises where sleeping accommodation is provided for the residents or inmates, and
(b) as part of the amenities provided exclusively or mainly for residents or inmates.
(2) Subsection (1) does not apply in respect of any part of premises of which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed.”.
Section 233 deals with the playing of sound recordings for clubs, societies, etc.
We need more information on this amendment. When we discussed a similar matter, in respect of which there were difficulties, the Minister of State said he would return to it.
I gave a commitment that I would revisit this area. This matter falls into a category of issues in which the committee is interested in respect of which a briefing could be prepared prior to Report Stage. I give a commitment to do that on this issue.
The Minister is close to getting the amendment right. We questioned the discrete charge earlier and I would welcome a briefing on it prior to Report Stage.
Does the Minister propose to include a new section 233 or does he want to reconsider it?I presume the insertion of this new section means that section 233 will be deleted.
Therefore, section 233 will become section 234.
I said earlier that we would consider the discrete charge issue and we are discussing it with the draftsman.
The discrete charge issue in terms of the reference to any part of the premises, refers back to subsection 1(a) where the premises are defined as having sleeping accommodation. Are we talking about hotels exclusively?
I think we are, as I cannot think of any other type of establishment in that regard.
I walked out of the Gaiety last week and across the road to a pub that I shall not name where two friendly looking chaps who might well play front row for Ireland with no hair and plenty of earrings demanded a discrete charge before I could be admitted. That kind of institution is in a different category.
From the debate we had on this matter, I recall there was a stipulation that there should be a residence dimension to the establishment. That is why other institutions would fit into that category in terms of having a residence.
What is the position if one were a resident or not a resident of a hotel that has a nightclub upstairs?
That would be a separate part of the establishment.
I refer to where a curtain would be drawn across part of the hotel premises where this kind of activity might be going on, although it is part of the hotel and under the same management and proprietor. It is entertainment provided on premises.
It is part of the amenities provided exclusively or mainly for residents or inmates.
I wanted to ask the Minister about that use of the word "inmates".
That is included to cover prisons.
I assume prisoners would not have to pay a discrete charge. They have been charged publicly rather than discretely, but we are dealing with a different type of charge in this amendment.
I will be re-examining this area. It is part of the dimensions of the Bill that we need to revisit. I have given a commitment to do that.
Progress will be reported on this matter before Report Stage.
Amendment agreed to.
SECTION 233.
Question proposed: "That section 233 stand part of the Bill."
Section 233 is similar to an earlier section. Institutions may be able to get around paying royalties if a club, society or other organisation is not established for profit and its main objects are concerned with the advancement of religion, education or social welfare. We had a long discussion on a similar matter earlier and the Minister said he would return to it. I ask him to address this matter in a similar way.
Has progress been made on this matter or is the Minister of State awaiting advice?
We are having discussions with the collecting societies on this issue and depending on the outcome of them we may not commence this section.
This section requires a commencement order by the Minister to make it operative.
This is an important section. While most other sections may not impact on the public this one will. If a club or society is prevented from running a function on a particular night, the patrons who have bought tickets to attend it will be angry. This is where the Bill will interface with the public in the same way as the issue regarding schools will interface with the public. This is a vital section dealing with whether musicians should be paid a copyright for music played in discos and clubs or whether an exemption should apply to discos and clubs. That is very important in this legislation and the Minister should not leave it floating out there. I would urge him to get it right and bring it in with the commencement of the Bill. If it stays there it will leave many unanswered questions. The row over payments by discos will remain and fester. That is what is happening at the moment.
The proposal I made, which met with your agreement, Chairman, was to try to deal with as many of these issues in briefing material before Report Stage. It is fair to members and I would be happy to do it. This is another issue which we should have sorted out by then. Many of our suggestions here are that we should discuss certain issues with collecting agencies and interested parties. That does not relate only to this amendment but also to others. I will ask my officials to get as many of those as possible out of the way so that members will know where we stand going into Report Stage.
I take the Deputy's point regarding Report Stage and how there are all sorts of shutters coming down. I want to avoid that as best I can.
Question put and agreed to.
At this stage we have had a good run and I am suggesting that we adjourn. I would like to remind members that we will have a meeting this Thursday for the Joint Committee to discuss our report on the Grocery Order with the Competition Authority and departmental officials. That meeting will take place at 2 p.m. in room G5 in Kildare House.
I wish to thank all the members who participated in this debate, as well as the Minister and his officials, for the progress we made today on the Copyright Bill. I propose that we adjourn the meeting, as agreed, until tomorrow, Wednesday, 5 April 2000, at 4 p.m.
The Select Committee adjourned at 6.05 p.m. until 4 p.m. on Wednesday, 5 April 2000.
