Dáil Éireann - Volume 510 - 11 November, 1999
Copyright and Related Rights Bill, 1999 [ Seanad ] : Second Stage.
Mr. T. Kitt Mr. T. Kitt
Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt):  I move: “That the Bill be now read a Second Time.”
Good copyright legislation is essential for the health of the modern Irish economy. This form of intellectual property law is, perhaps, most usually thought of as applying to books and other literary forms. In reality, it is the primary means of legal protection for a wide range of works. Musical, dramatic and artistic works are covered by copyright, as is computer software, which is included in the category of literary works for copyright purposes. Films are also protected by copyright as are photographs. In addition to works protected by primary copyrights, important economic interests are protected by secondary copyrights, most notably sound recordings, which includes the recorded music industry. In recent years, new forms of protection have been developed out of copyright. These include specific protections for the rights of performers and rights in databases.
This simple listing of the scope of copyright protection should be enough to show the importance of a fully functional copyright and related rights law for the functioning of any modern economy. Unfortunately, this importance is not really reflected in current Irish legislation. The last comprehensive reform of Irish copyright law was the Copyright Act, 1963. This Act was itself heavily based on the United Kingdom Copyright Act, 1956. When we consider the extraordinary development of the means for the creation, storage and transmission of copyright works in the period since then, it is obvious that this situation must be unsatisfactory. There have been some reforms, most importantly, in the Intellectual Property (Miscellaneous Provisions) Act, 1998. It remains true, however, that Ireland has arrived at the end of the 20th century with a copyright law drafted in an age when computers occupied whole buildings, telecommunications were still substantially based on manual switching and, when it came to filing and record-keeping, no alternative existed to papers files and the card index. The home video recorder had yet to reach our shores and even effective photocopying was a thing of the future. It is clearly a time to ready Irish copyright law for the new millennium.
This Bill represents, perhaps, the most significant milestone yet in a programme of intellectual property law reform in which, to their credit, successive recent Governments and bodies of legislators have tackled the mammoth task of modernising this area of our law. This started with the Patents Act, 1992, and continued with the enactment of the Trade Marks Act, 1996. The Intellectual Property (Miscellaneous Provisions) Act, 1998, brought about badly needed improvements to the Copyright Act, 1963, in relation to remedies for copyright rightsholders for infringement of copyright and, in the criminal sphere, for penalties on conviction for copyright offences. The final stage in this programme will be a new Bill providing for the protection of industrial designs.  This Bill, which I intend to bring before the House next year, will replace legislation which, after all this time, is still based on the Industrial and Commercial Property (Protection) Act, 1927.
Ireland is well along the road to having in place a modern, effective, efficient regime of protection for intellectual property rights in general, one with which we may meet, with confidence, the challenges of the new millennium. The Government is solidly committed to ensuring the neglect of former years will not be repeated and that the expertise and resources required to maintain our intellectual property laws in good order will be provided.
One aspect of our copyright reform programme that has been the subject of some comment is its relation to Ireland's obligations under European Community and international copyright law. Current Irish copyright law has been the subject of complaint from our European partners and from our international trading partners in general, on the basis that Ireland has failed to take on board a number of promised copyright reforms required by European and international law in due time. The obligations concerned include those contained in a number of European directives as well as international commitments entered into under the Berne Convention on the Protection of Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights, or the TRIPs Agreement. It has been suggested we are only bringing forward this long needed reform now as a result of international pressure. I wish to make clear that neither the Government nor its recent predecessors should make any excuse for the inaction on copyright reform over many years. This was inexcusable. It must, however, be recognised that there has been a great quickening of interest in intellectual property law in the last decade. This development was in line with increasingly rapid changes in the information economy in that period. It is entirely to the credit of successive Irish Governments and bodies of legislators in that period that they have done their level best within the limited resources available to respond to this. The establishment in 1992 of the intellectual property unit in my Department and the record of legislation, which I mentioned, clearly indicate the seriousness with which Ireland now views intellectual property matters.
As the House will be aware, my Department has committed considerable time and effort to bringing forward a comprehensive programme of copyright reform, culminating in the Bill we are discussing here today. This Bill has resulted from extensive consultation between my Department and various copyright interests leading up to and following from the publication of the draft Copyright Bill in July of last year. This Bill sets out a modern and efficient copyright system at home and facilitates compliance with our obligations to our trading partners abroad. Ireland has no reservations about the need for strong international copyright protection in a world of communi cations without borders. This commitment is one of the foundations of this Bill. The House will no doubt be aware that the Bill has been welcomed by our European and international trading partners as well as the major copyright based industries. This suggests that the time taken to prepare the legislation was well spent.
The principal objectives of the Bill may be summarised in four points: to put in place a modern, effective, efficient and technology neutral regime of statutory protection for copyright and related rights, including provision for civil remedies and criminal penalties fully sufficient to deter copyright theft, bearing in mind the economic and cultural consequences of such theft for the information society; to transpose into Irish law a number of EU directives in the field of copyright and related rights; to bring Irish law into conformity with all obligations incurred under international law on copyright and related rights, including the Berne Convention, the Rome Convention, the TRIPs Agreement, the World Intellectual Property Organisation Copyright Treaty, and Performances and Phonograms Treaty; and to provide, for the first time in Irish law, for tailor made regimes of civil protection for performers' rights, rights in performances and non-original databases in line with the best EU and international standards. Having prepared the text of the Bill with the greatest care, the Government is satisfied it will achieve these ambitious objectives.
Part 1, on the preliminary and general, deals with certain technical and incidental issues, including interpretation of terms and the power of the Minister for Enterprise, Trade and Employment to make orders and regulations under the proposed legislation. Part II, on copyright, deals with the substantive provisions on copyright, including the traditional neighbouring rights of copyright in sound recordings, broadcasts, cable programmes and typographical arrangements of published editions of works. The main subjects addressed are the nature of copyright works and works in which copyright may be held to subsist; authorship of copyright works and the duration of copyright protection in the various classes of copyright work; the rights of a copyright owner in relation to a work, including the exclusive right to authorise the copying or reproduction and making available to the public or adaptation of the work subject to the provisions of this legislation; primary and second infringement of copyright; and the various exceptions to be provided for derogating from the absolute rights of the copyright owner in certain limited specific cases. These are, principally, the “fair dealing” exceptions in favour of research and private study, criticism and review of works and incidental inclusion of copyright material in another work. There are also limited exceptions in favour of educational and library and archival use as well as certain uses in public administration. This Part of the Bill also includes provision for moral rights; provisions governing deal ings in copyright interests, including assignment and licensing; and remedies for infringement of copyright interests and criminal offences and penalties in the area of copyright and related technical issues as well as a range of technical, incidental and subsidiary issues associated with copyright proper.
Exceptions to copyrights and to related rights are legislative provisions which allow activities that would normally be regarded as restricted by copyright protection to be carried out without such restriction or the payment of copyright royalties in very particular circumstances. Exceptions may be of a substantive, policy nature or may be technical. Technical exceptions deal with such matters as incidental inclusion of copyright materials in other works. An example of incidental inclusion would be where a film is being made on Grafton Street and music can be heard being played from a record shop. In such a case, where there is no deliberate act on the part of the film maker to include that music in his or her film, the music is properly regarded as incidental in the film. Its inclusion does not give rise to any requirement on the part of the film maker to pay copyright royalties. This Bill contains a number of exceptions, technical and substantive, in relation to copyright and, in parallel, in relation to performers' rights, rights in performances and to the database right.
The Government is convinced of the need for a specific range of exceptions. They are required for technical reasons, and as a small but important element in the process of balancing the interests of rightsholders with those of the users of protected materials. Exceptions must, however, remain strictly limited, principally for two reasons. Copyright and copyright royalties are not like taxes. They cannot lawfully be imposed or remitted by Government at will. They are property rights in much the same way as rights in the ownership of other classes of property and their status as such under Bunreacht na hÉireann has been recognised by the courts. Exceptions must remain very limited as Ireland's obligations under EU and international law place strict constraints on the scope for exceptions. Exceptions must be specific and limited and they must not interfere with the normal exploitation of copyright works. These restrictions severely limit Ireland's scope for enacting new exceptions or for broadening the exceptions already in existence under the Copyright Act, 1963. Discussions are ongoing in Brussels on a proposal for a new directive on copyright and related rights in the information society.
Following Commission consideration of amendments proposed by the European Parliament, the text being considered would restrict copyright exceptions in the Community to a narrow, closed list. Ireland would be far from agreeing with the extremely restricted scope for exceptions to copyright allowed by the text now under discussion. However, the Government feels the  general principle of strictly limited exceptions emerging from the negotiations to date needs to be borne in mind in our current legislative endeavour. For these reasons, the free disposal by law of copyright and related rights interests through the expansion of the scope or range of exceptions is not an option under the Constitution or under EU or international law. For this reason, the Government rejects any suggestion that the exceptions proposed in the Bill as it stands be expanded.
Part III on rights in performances provides for a regime of rights, exceptions and sanctions in respect of performers' rights and rights in performances. This is broadly parallel to those provided for in relation to copyright by Part II. The rights protected under this Part may broadly be described as the exclusive right of a performer to authorise the copying or making available to the public of his or her performance and recording rights. Recording rights involve the rights of persons who have exclusive recording contracts with performers, such as record producers, to protection from illicit recording. Part III represents the introduction into Irish law for the first time of a comprehensive regime of protection for this type of right. This includes direct legal protection for performers and producers against illicit direct recording of live performances, that is, what is often described as bootlegging.
Part IV on performers' moral rights provides for a regime of moral rights protection for performers in relation to their performances which is parallel to that provided for authors of copyright works under Part II. Performers' moral rights are afforded a separate Part because they apply to performers' rights only. The concept of moral rights is not applicable to recording rights. Consequently, the incorporation of performers' moral rights in Part III could have posed serious technical drafting problems.
Part V on databases provides for a new regime of protection for non-original databases as required by the EU database directive. Non-original databases are databases the creation of which does not involve significant intellectually creative input. Examples are simple alphabetical lists, such as telephone directories. These would have been protected up to now under Irish law by copyright as literary works. However, the database directive requires that a higher standard of originality be applied to databases if they are to qualify for full copyright protection. This Part will provide a more limited form of protection for databases no longer meeting the copyright originality standard in line with the rules set out in the database directive.
Part VI on the jurisdiction of the controller makes provision for and expands the role of the controller of patents, designs and trade marks as a tribunal for the resolution of certain disputes regarding copyright licensing schemes. Part VII on technological protection measures provides copyright rightsholders with rights and remedies against persons who unlawfully circumvent tech nological measures designed to protect certain copyright materials. An example of this would be producing counterfeit smart cards for tapping into encrypted satellite broadcasts and cable programmes. Another example is the removal of identifying rights management features, such as digital fingerprints and other electronic markers, from copyright materials.
Mention of technological protection measures prompts the question of whether the Bill contains measures specifically designed to address the challenges posed by the information society, such as the Internet. The Bill is designed in so far as possible to be technology neutral. It is drafted to accommodate the demands of the information age in the copyright field in a flexible and adaptable way.
Apart from the provisions relating to technological protection measures, some specific provisions are worth noting. For example, the Bill generally replaces the concept of publication of a work with that of making available to the public. This removes any doubt that situations of passive publication, such as placing material on Internet websites, fall within the scope of copyright law. The Bill also contains 'notify and take down' provisions. These provide that if copyright infringing material is being carried on a service, such as an Internet service, and the rightsowners inform the service providers that infringing material is being carried on that service, the service providers will be obliged to remove that material as soon as is practicable. If the service provider fails to do this, he or she will also be held liable for that infringement. The Bill explicitly deals with representations of works. This will ensure that digital representations of works are properly covered by copyright law.
These examples show the Government's determination to address specific copyright problems associated with new technologies, as well as providing a strong general legislative environment for the protection of copyright and related rights in the information age.
I trust I have shown the vital importance of effective and efficient copyright and related rights legislation for the health of our economy and society in the information age. This is an important step in a major programme of commercial law reform which is already well on the way to rectifying the evils of past neglect of intellectual property law. As we enter the new millennium, the enactment of this Bill will move our copyright law from its present backward state to one fully capable of meeting the demands of the information age. I commend the Bill to the House.
Mr. Stanton Mr. Stanton
Mr. Stanton: I welcome the opportunity to contribute to the debate. Much work has been done on the Bill, which has been described as one of the largest Bills to come before the Houses of the Oireachtas. I acknowledge the detailed work done by the officials in the Department of Enterprise, Trade and Employment and by our colleagues in the Seanad on this formidable legis lation. I welcome the fact the Minister of State made available a draft copy of the Bill at an earlier stage and I acknowledge the hard work he has done. I wish him well in his task of shepherding this Bill through the Dáil. We will do our best to challenge a number of aspects of the Bill on Committee and Report Stages and I look forward to debating the issues with him.
We are updating legislation which has not been altered since 1963. This legislation is technical and complex. It has taken many officials a number of years to compile. I am sure the Minister of State would be the first to acknowledge the support of an army of civil servants when drafting and debating legislation. Perhaps the Civil Service believes the army is not big enough.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: It is a platoon.
Mr. Stanton Mr. Stanton
Mr. Stanton: It is doing the job of an army.
It is the job of an Opposition to enter into constructive debates with Ministers to challenge certain points so that the legislation which finally emerges will be the best possible that can be presented as law. However, Opposition Deputies and backbench Government Deputies have little or no research facilities to assist them in this task. Much of our legislation is driven by our commitments to European Union Commission directives and international agreements and this legislation is no different. I am sure the Minister of State, who spent a short time in Opposition, would be one of the first to acknowledge that it is extremely difficult without research assistance to identify and debate points which need to be highlighted. This Bill is a clear example of technical and complex legislation which has international significance and importance. In other jurisdictions members of Parliament are allocated at least one technical research assistant to help with legislative work. Is it time to examine the possibility of doing something similar?
Intellectual property is an expression of knowledge that is owned by someone. It consists of three areas – copyright, patent and trade marks and intellectual or trade secrets. We are all familiar with the fact that drugs can be patented and songs copyrighted. The growth of digital technology has pushed intellectual property into new territory. One could define intellectual property today as anything that can be sold in the form of one and zero. It is the primary product of the information age. As I listened to the Minister I thought he was about to say that he would boldly go where no man has gone before when he spoke about the Internet.
The Minister stated that one of the principal objectives of the Bill is to put in place a modern, efficient, effective and techologically neutral regime of statutory protection for copyright and related rights but technology is moving so quickly that we could be changing laws today to fit a tomorrow we can only guess at.
In 15th century Venice, as well as 16th century England, royalty grants for which certain authors  and printers were given the exclusive right to publish books and other materials were issued. The purpose of these grants was not to protect authors' and publishers' rights but to raise government revenue and to give governing authorities control over publication content. The Statute of Queen Anne, passed in 1710, was a major event in the history of copyright law. It recognised for the first time that the primary beneficiaries of copyright should be authors. The idea of limited duration was introduced after which works would become published. Initially the period was set at 28 years. In 1741 similar laws were enacted in Denmark. The United States followed in 1790 and France in 1793. Copyright law was then developed in the 19th century in most western economies. It was not until 1852 that the idea of international protection came about. France extended protection of all its copyright laws to all authors regardless of nationality and this led to the Berne Convention in 1886. The primary provision of this convention is that each of the signatory countries provide automatic protection of works in other countries and for unpublished works whose authors are citizens or residents in such other countries.
Copyright is an attempt to strike a balance between the needs of creators and the interests of the wider public. Growth in the book trade led to growth in libraries and this, in turn, led to the development of copyright libraries. Acts of Parliament required the delivery of copies of every book to a varying number of libraries. This idea spread from Britain to the United States where the Library of Congress was founded in 1800. The 18th century saw the development of commercial lending libraries and the 19th century of the free public libraries. Initially people were afraid that the availability of books would discourage people from purchasing copies for their own use but, in fact, the circulating libraries promoted rather than diminished the sale of books.
Germany in the 18th century consisted of about 350 tiny states, each with its own laws. When writers published books in one jurisdiction printers in neighbouring states were free to copy the book and some actively encouraged this form of piracy. The sale of books rocketed but writers earned little. Some argued that piracy helped to keep the price of books down and that this benefited the public and helped the spread of ideas. There is a debate about whether or not it was right to restrict the flow of knowledge for writers' private gain. Kant, in 1797, said that every artistic work consisted of a physical object and a piece of its creator's spirit. He added that people could buy the object but not the spirit because the soul cannot be purchased. Thus writers can copy books freely but must respect the writer's integrity and this idea slowly grew into the current European system of copyright.
The Bill is an attempt to update our copyright laws which have been based on the Copyright Act, 1963, with some amendments. While we  have international agreements and treaties to abide by, we must be mindful of the parameters of our own Constitution when we enact laws and statutes in this jurisdiction. When the House discussed the forerunner to this Bill, the Copyright (Amendment) Bill, 1998, some time ago, some of my colleagues and I raised questions regarding the constitutionality of that legislation. The Minister promised to subsume that legislation into the Bill which is before us today.
In a submission made by the Irish Hotels Federation, the Irish nightclub industry association and the Vintners Federation of Ireland, the constitutionality of the presumptions in section 134 was questioned. The submission argued that these presumptions are not required by any international obligations taken by the State and it maintains that the section, like section 2 of the International Property (Miscellaneous Provisions) Act, 1998, fundamentally alters the ordinary rules of evidence which apply in similar criminal proceedings. Section 134 has the effect that copyright is presumed to subsist in any work until the contrary is proved and that the plaintiff in any proceedings is presumed to be the owner and exclusive licensee of the copyright until the contrary is proved. On the other hand, rights holders are very strongly in favour of the presumptions contained in section 134. Difficulties have existed in the past in requiring collecting societies to present affidavit evidence from at home and abroad and to bring forward large numbers of witnesses, many from overseas, to face cross-examination on these affidavits.
This issue will have to be teased out further on Committee Stage. I raise it now in order to request the Minister to give the matter some further thought and perhaps to give him a chance to hold meetings with interested groups. I welcome the agreement by the Minister and the Chairman of the Joint Committee on Enterprise and Small Business to hold a special meeting where interested parties can debate this highly technical matter. Many people are only now beginning to realise how important this legislation is and how far reaching it will be. We are anxious that sufficient time be given on Committee Stage to debate amendments fully. To that effect we do not intend to prolong the second reading of the Bill.
An important right has been omitted from the Bill. I understand that 11 of the 15 EU member states have on their statute books a right known as droit de suite, the artist's resale right. This is a major issue at EU level. The EU is committed to the ARR and the United States has said it will follow the EU lead. Droit de suite arises from the fact that visual artists work in originals and it is the originals that they sell. It allows them to receive compensation for the ongoing increase in value during the subsequent distribution of their creations when the works are sold on. This DDS gives a percentage of the sale price to the artist each time the work is resold. Otherwise all profits in the artist's work go elsewhere. The selling price  of an artist's work usually increases after the death of the artist. The very act of dying increases the value.
Droit de suite originated in France in the 1920s. At that time a poster was used showing two ragged urchins looking into a glitzy gallery window with the caption, “Look, one of daddy's paintings”. The idea was that the painting had increased dramatically in value while the artist who created it was getting nothing as a result of the increase. Old artists who are no longer able to work often live in very precarious financial situations while they can see their work selling for very large prices. This does not seem fair. Copyright has to do with rewarding creators. We have moral rights which preserve the intellectual relationship between the author and his or her work. Many arguments can be made in law for and against artists' resale rights. On balance, justice is on the side of the artists and I ask the Minister to examine this issue and to formulate an amendment to the Bill so that this right can be enshrined in our law.
If the Minister decides to include this right he could study how well it works in Germany, France, Denmark or Spain, to mention a few of the EU countries where it works in different ways. At the single market council meeting held on 28 October, the question of the EU draft directive on this matter was removed from the agenda due to a lack of majority support. I understand that Ireland's position was to abstain on the question and this represents a softening of our Government's attitude because until now we have been against the directive. Perhaps the Minister of State can clarify this matter. I ask the Minister to do what he can to support DDS and to advance it at European level.
When I began to study copyright issues in preparation for this debate I did not realise how important, complicated and all pervasive were the matters involved. There is an educational and information deficit in our society concerning copyright and intellectual property. Copyright, patents, trademarks, trade secrets issues and so on are unknown to many. Moral rights pertaining to database rights and so on are other important issues which the Minister referred to in his speech and which are included in the Bill. Measures should be put in place so that people are made aware of these issues and of their implications. It is possible that people are breaking the law without realising it. I realise that ignorance is no defence in law but the Minister should initiate an educational programme in schools and at every level to alert people to the rights of owners of copyright. People must be made aware that to breach copyright is to steal and could constitute a criminal offence.
It is important that this vast and technical Bill be given ample time on Committee Stage. It is vital that committee members have time to study the points made at the forthcoming meeting of the joint committee and to formulate amendments. We must not rush the Bill. Many agencies  have been studying it and because of its complexity and the changes that have been made since it was drafted we need time to examine the Bill in detail. Perhaps the Minister in his reply can let us know when he hopes the Bill will pass its final Stage. What kind of timetable has the Minister in mind for the Bill?
Ireland has the third highest instance of software piracy. It seems that Ireland had the highest instance of it but recently we have been placed third. The rate has fallen from 65 per cent to 55 per cent behind the Greeks and the Spanish. It seems the economy is losing tens of millions of pounds in revenue and lost sales and job creation is affected also. A small number of retailers are selling PCs with software pre-installed. People are being ripped off because they are not supplied with licences, manuals or CDs. Many people are unaware of their rights when they buy computers. There is a need for education here and, wearing his hat as Minister of State with responsibility for consumer affairs, perhaps Deputy Kitt could look at this new area of computers. It is important that people selling computers would be compelled to inform people of their rights. This is a provision under the Bill.
Often people bring computers to be repaired to people who have just set up shop and when the repaired computer is returned they have no way of knowing what work has been done. The Minister should consider some form of certification, registration or licensing for computer repair outfits so that the consumer will know he or she will be dealing with a reputable and accountable organisation. That is a serious issue and I ask the Minister to take it on board. Using unlicensed software is stealing and there are dangers related to Y2K and virus infections.
In the 1963 Act a clear distinction was drawn between the rights of composers to their music and the rights of record companies. Record companies get their profits and income principally from the sale of records. On the other hand the composer is totally dependent for his living on the exploitation of copyright. Equitable remuneration is at issue here. The current proposal gives record companies the same rights as composers. A 1996 Supreme Court decision stated that record companies are not entitled to royalties before the music is played. They are paid subsequently. The record companies see section 17 as the most important part of the Bill but others maintain that the section is not required by the TRIPs agreement. These are issues arising from ongoing concerns.
There are reservations regarding the presumptions in section 134. For instance, will it be constitutional to presume criminality? That is an important issue. It is a vague grey area. After all the hard work which has gone into it, we do not want the Bill to be thrown out because of a constitutional difficulty. While the presumptions provided for in section 134 are of vital importance to the copyright owners, they would argue that section 122 serves to nullify the presumptions  provided for in section 134. This is another issue on which I am sure we will get more information next week.
The record companies are also concerned about what they see as a provision which, according to them, served to deny copyright owners revenue from any charitable event no matter what the scale or occasion. We must revisit this, especially if there is a danger that charitable events could be used to avoid paying copyright or other fees. Once off, occasional charitable events should be exempt. There is a problem here and I want to know how the Minister will balance those needs.
Problems associated with transient or incidental copies have also been raised. The duration of existence of these copies could cause difficulty. I will return to this matter as it has to do with the Internet.
With regard to hotels, does section 39(1)(d) mean that the infringement of copyright could occur where guests view televisions in hotel bedrooms and could this be extended to televisions and radios in public hospitals, prisons, etc.? There seems to be a problem with section 39(1)(d). I do not want to go into the detail of it. I am just flagging the issue so that the Minister will have time to look at it and report to us on Committee Stage. Will a licence fee have to be paid by the hotel or guesthouse owner for every television in the premises? Clearly if this is the case, it would have serious implications for the industry.
The Bill is confusing where it deals with licensing bodies operating licensing schemes, as detailed in sections 144 to 149, as distinct from where it deals with licensing bodies which grant licences, as mentioned in sections 151 to 154. Section 166 provides for certification and licensing schemes. This is a most confusing section and perhaps the Minister would reconsider it. I have spoken to experts in the field who tell me that they cannot make sense of it. Perhaps the Minister can enlighten us? Should we remove the distinction between schemes and licences to make the Bill simple and workable? Does the Bill demand that a licensing body obtain the consent of every rightholder? Is that practical? There are other issues regarding licensing to which I will return on Committee Stage.
Government and Oireachtas copying seems to be strengthened in this Bill. We must examine this area carefully in the public interest and I will be most interested in the rationale behind this approach.
The deposit of copyright material is also problematic. The Centre for Independent Living has been in touch with us concerning the availability of books in an electronic form for people with dexterity and sight problems. I understand the Bill provides for the provision of books in electronic form to deposit libraries but this is not clear. Perhaps we can look at that again. I want to flag that issue now. I know there are other related issues involved.
 I am sure the Minister is aware that there is also a difference of opinion concerning the ownership of copyright of work generated by in-house journalists. Journalists see the Bill as working to diminish copyright of staff journalists. They also maintain that attribution and integrity rights are akin to basic human rights and, therefore, cannot be waived. They argue that copyright in all European states apart from the UK cannot be held by an entity but must be held by a person. It seems that the only exception to this is where companies are formed by creators to collect and distribute royalties as a matter of convenience to the original creators. The NUJ quotes the universal declaration of human rights and the Berne Convention. The journalists also maintain that they object to section 23(2), which only allows authors in the course of employment by the proprietor of a newspaper or periodical to make use of the article for any purpose other than making it available to newspapers. The NUJ maintains that this provision is too restrictive. Journalists, it seems, are excluded under the Bill from paternity and moral rights of the work. Has the public the right to know who has written an article, taken a photograph or drawn a satirical cartoon? Has the public the right to know if such work has been altered or digitally manipulated in a context which violates the original meaning of the work? Are these essential freedoms? Should a journalist have the right to refuse to allow his or her work to be published in a newspaper which he or she finds unacceptable?
Protection of sources is another important journalistic principle. It seems that libel law does not allow legal separation of a journalist and his or her work. Would this Bill mean that a journalist could be sued but that copyright would rest with the corporate entity?
There are other points, such as the internationally recognised commercial rights of producers of intellectual property. In other areas the commercial exploitation of copyright is distributed equitably between its originator and distributor. On the other hand if a staff journalist is employed by a newspaper or television station, the employer, who is paying the wages, must be protected from the employee who would offer his or her work to someone else. I would be interested to know what happens in practice under the current legislation. Are employers losing out under the law? If not, why change it? Perhaps the Minister will look at that again. I would imagine that a contract would exist to prevent this activity and that breach of contract could lead to serious legal action and or termination of employment of the journalist who had infringed the contract.
I can understand the objections of the newspaper owners also. They too must deal with electronic publications and the convergence of media. The national newspapers, while maintaining that their view is in line with the international situation, stress that in order to compete effectively in the modern age they must own the copyright of  material generated by their in-house journalists in the same way that owners of competing information services do. They feel that section 23(2) should be deleted and they are at variance with the journalists on this point. I look forward to both groups debating their points before the joint committee shortly. I will not come down on any side until I have heard all the facts and teased out the issues.
This is important legislation. We seek the provision of a great deal of time for Committee Stage in order to tease out the issues, many of which arose recently. I know many issues were dealt with in the Seanad, but people are only now beginning to recognise the importance of the legislation.
I already referred to licensing schemes but there are also problems with the controller. The 1963 Act, for example, did not provide a speedy means of solving disputes relating to licensing schemes. Due to the lack of resources and expertise, the controller could not do his job properly. A method must be found to solve disputes quickly and simply. In other countries copyright tribunals have been established for that purpose. The registration of licensing bodies should be compulsory because such bodies could become very powerful if not regulated properly. A tribunal with the proper expertise and resources offers the best way forward in this regard.
The Bill also deals with what are termed “related rights”. These include performers' rights and rights relating to databases. The Bill does not, however, indicate what constitutes “substantial investment” with reference to database rights. I have been asked to bring to the Minister of State's attention the fact that confusion exists concerning the transitional provisions contained in section 45 of the First Schedule. Again, this does not appear to make sense. It is vital that resources be made available to the controller or, as I would prefer, to a tribunal so that the performance of the powers and duties can be carried out properly.
The Minister of State referred to exemptions relating to the draft European directive on copyright. How can the free exemptions to copyright protection contained in the Bill be reconciled with the right to fair remuneration of the copyright owner contained in the draft information society directive? I welcome the Minister of State's indication that he intends to restrict a further narrowing of the restrictions and I wish him well in that regard.
How will the controller determine the reasonableness of licensing schemes and should the Bill not contain guidelines in respect of this matter? How does the Minister of State square the length of retention of Government copyright with the Freedom of Information Act and transparency principles? Again, I refer here to the ownership position in respect of copyright on journalists' works.
What is the Department's policy on exempting public institutions from the public lending right  and what financial arrangements will be made to support public libraries, assuming they are not all to be exempt? Will the Minister of State explain why a distinction is being created between non-property rights and property rights for performers? This has no basis in international instruments.
Why does the Bill refer to “copying” when all international EU instruments indicate that it should refer to “reproduction”? The term “copying” is not defined in the Bill. Questions also arise about the linking of an original work and a copy or reproduction of it. Is the Minister of State confident the Bill will implement the Internet infringement provision? Will it allow books to be electronically filed with libraries?
The Bill is an extraordinarily complex item of legislation. It has far-reaching implications and it is not merely academic, it is highly practical. I congratulate the officials of the Department and the Minister of State for the hard work they invested in producing the Bill. Unfortunately, quite an amount of work remains to be carried out in respect of it. We will have to roll up our sleeves and get stuck in on Committee Stage. By working, co-operating and debating together, we will produce legislation which will, hopefully, see the Minister of State go boldly where no man has gone before.
Mr. Rabbitte Mr. Rabbitte
Mr. Rabbitte: I should begin by making a general point in favour of the Bill, namely, to say that if one is to have a copyright statute it should be comprehensive. I acknowledge that, from this point of view, the law in Ireland as it stands – as the Minister of State and Deputy Stanton indicated – is not comprehensive. One effect of the proposed enactment would be to make it so. For example, moral right is not provided for in existing Irish law but the Bill contains provisions to introduce the concept. Moral right is a right in law for an author of a work to be recognised as the author of that work. Associated with moral right is the right to object in law, in certain conditions, to derogatory treatment of a work.
A second point is that the Bill is intended to transpose into domestic law a number of European Union directives. This is a pressing aspect of the Bill and I ask the Minister of State to provide further information on the question of proceedings against Ireland. Have such proceedings commenced or has the Commission decided to hold back on the basis that a speedy enactment of the legislation has been promised? This situation contains its own message, namely, how low down the list of priorities and status does the intellectual property unit of the Department of Enterprise, Trade and Employment lie?
I recall how, by way of panic reaction, it was proposed by officials of the Department that a remarkable emergency fast-track procedure might be used in the drafting of the Bill. The Bill was not developed in the most ideal circumstances. That is not a reflection on the officials concerned, but rather a comment on the Depart ment from the point of view of the effectiveness and appropriateness of its administrative standards and procedures. In that context, the Minister of State, in referring to how far we have fallen behind, said:
I wish to make clear that neither the Government nor its recent predecessors should make any excuse for the inaction on copyright reform over many years. This was inexcusable.
That may be true. However, it ought to be placed on record that the army of civil servants to which Deputy Stanton, in all honesty, referred, was never and I suspect is not now available. That makes its own comment on the status afforded to updating the law on intellectual property in the great scheme of managerial priorities within the Department.
If Ireland was about to assume the Presidency of the European Union in the near future, one might find the officials most directly concerned with the drafting of the legislation were poached in the national interest.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: The Deputy is beginning to sound like Deputy O'Malley.
Mr. Rabbitte Mr. Rabbitte
Mr. Rabbitte: When the Minister of State referred to “inexcusable” behaviour, he ought to have been more pointed in laying blame where it should be laid.
This matter gives rise to Deputy Stanton's point about the complexity, novelty and relevance of the legislation. How many colleagues on all sides of the House will contribute to the debate? The remarkable thing is that the Minister of State, as he did in the Seanad, is setting out the case for the legislation being a matter of life and death for our economy. If we had a debate on headage payments, one would find it difficult to obtain time to make a contribution. If the legislation is as important as the conventional wisdom in the Department has long held, as Deputy Stanton correctly pointed out, the low level of awareness about it is remarkable. The Bill was also drafted in inappropriate circumstances from a different point of view, as was mentioned during the Seanad debate on Committee Stage by Senator Feargal Quinn. He said, “It is no secret that the Bill has been introduced in response to pressure, mainly from the United States”. The Bill was in part driven by the commercial interests of the United States and the Federal Government acting on behalf of those interests through putting pressure on Ireland and making veiled and not so veiled threats. This was inappropriate behaviour, bordering on interference by a foreign Government in our internal affairs.
Senator Quinn is right. In the Seanad the Minister mentioned that the Bill was of enormous significance from the points of view of commerce and culture. That is true but the Bill does not propose to strike an appropriate balance between commercial imperatives and cultural require ments. It would be going too far to say that this is purely commercial legislation but it is primarily commercial law entirely infused with the principles of such law. This is understandable given that the Bill emanates from a Department of a commercial nature. Given the nature of the measure in a broad context, however, that it pertains to a field that is both commercial and cultural, either it should have emanated on a joint basis from the two relevant Departments or it should be accompanied by a parallel cultural Bill or legislative measure. The reality is that the cultural side has been relegated.
Culture in this context has broad meaning. It extends to spheres such as education and other aspects of public policy. There was an attempt during the lifetime of the rainbow Government by a collecting society to lumber primary schools with rights payments in the most inappropriate circumstances – the use of recorded music for fund-raisers and school discos. The attempt was strongly resisted by the then Government. The collecting society was faced down and it abandoned its plan. That caused quite a skirmish. The then Minister was advised by civil servants that this was in breach of the law, not necessarily civil servants concerned with intellectual property but at assistant secretary level. The Minister said, “Thank you very much for the advice but I have taken this decision”. The Civil Service faithfully implemented that decision. The Bill now produced will give the green light to this type of antisocial and anti-cultural behaviour. It is a matter of balance and it was not acceptable for IMRO, the organisation at that time, to attempt what it sought to do. How that conforms with the detail of the law on intellectual property is a secondary consideration.
A point that is repeatedly laboured by the proponents of this Bill is that it is vital to the information age and the creation of an information society in Ireland. I accept that the law has not kept pace with various developments but we are not alone in that respect. Almost every country in the world faces pressure to update and adapt copyright law and the law on intellectual property in general. The fact that we are so far behind in amending our domestic legislation might prove to be an advantage. The process of drafting this new Act coincides with a major moment in history for the operation of intellectual property as a result of the emergence of the information society. How we all handle the amendment of intellectual property legislation will have a major influence on what the information society will come to mean for us all, who will benefit and the extent to which society will gain from it.
It is contended that the information cannot function and will be delayed without the measures contained in the Bill. The Bill, it should be noted, proposes a maximalist intellectual property regime. It is said that this is necessary if the software sector is to thrive and employment is to be created. This point of view should be taken with a large pinch of salt. There is a strong culture  and developed tradition, particularly in the Internet community, of ignoring, even outlawing the use of intellectual property law. There are some cogent proponents of this philosophy and some good examples of how beneficial from an economic point of view such a philosophy can be.
One famous example of this is the Scandinavian computer programmer, Linus Torvalds, and his Linux operating system. Linux seems now to be reaching the point of critical mass. It may be about to take off. The system is widely available and it is free. The new applications are flowing from the software industry, applications which are also free. Leading computer manufacturers are now shipping machines with Linux pre-installed alongside Windows. Some manufacturers are even shipping with only Linux installed. The great strength of Linux is that it is free to everyone and is based on the core operating system that dominates the Internet, UNIX.
Another prominent proponent of the open source approach to computing is Eric S. Raymond whose book The Magic Cauldron sets out an economic theory of giving software away. The economic theory of giving it away might be examined by the Minister and his officials. It seems to be about to take off and Mr. Gates might be about to face a new challenge. This may be heresy in the Department but this is a Second Stage speech so I counsel that it is looked at.
Some things have changed since the Department was last here. The US federal courts have decided that Mr. Gates has behaved badly. He is a monopolist who has a dominant position and he has abused that position. His actions have held back progress and obstructed development in the software industry. They have not benefited consumers while earning thousands of billions of dollars for Microsoft and making Mr. Gates the richest man in the history of the world. That is not me speaking, that is the outcome of the court decision in the United States. It is expected that sometime next year, the US courts will exact justice on foot of that preliminary decision.
Copyright law has facilitated this abuse of power by Microsoft – it classes Microsoft's computer programmes as literary works. As my colleague, Senator Brendan Ryan, said during the Seanad debate on this Bill, a computer programme may be a literary work for the purposes of copyright law but not in common sense. Using a phrase from a real literary work by a genuine author, the law is an ass in this regard. Mr. Gates is now regarded as being on the same level as William Shakespeare.
It may, however, be that the alternative tradition in computer programming, open source programming, may be about to challenge Microsoft. There would be a certain irony in that. It is interesting, as Senator Ryan pointed out, that life saving drugs do not have the same protection as Mr. Gates's Windows. They come under an inferior regime of intellectual property patent law.
 I now turn to some specifics. A definition of the “Internet” is curiously missing. Just about everything that needed to be defined for the purposes of the Bill has been except the Internet. Why is this the case? The absence of a definition probably leaves it for the courts to decide. Does the Minister of State consider that appropriate? The decision to use the term “copying” to describe the restricted act which forms the basis of the reproduction right has attracted puzzled remarks from a number of commentators, including the Irish Copyright Licensing Agency. Reproduction is the agreed norm at international level. The Bill follows international norms carefully in certain other respects and I am not sure why it departs from it here. It is felt that copying may lead to confusion and it seems to be a narrower interpretation of the restricted act than would be the case if reproduction were used.
This relates especially to sections 37 and 38. Section 38 illustrates how confusing, difficult, complex and detailed this is. It provides that:
38 – (1) References in this Part to copying shall be construed as including references to all or any of the following, namely –
(a) in relation to any work –
(i) storing the work in any medium;
(ii) the making of copies which are transient or incidental to some other use of the work;
(b) in relation to an artistic work, the making of a copy in three dimensions of a two dimensional work and the making of a copy in two dimensions of a three dimensional work;
(c) in relation to a film, television broadcast or cable programme, making a photograph of the whole or a substantial part of any image forming any part of the film, broadcast or programme;
(d) in relation to a typographical arrangement of a published edition making a reprographic copy of the arrangement.
Will opting for copying as distinct from reproduction invite litigation in this area?
The definition of “research” greatly preoccupied a number of Senators. They held the view that the definition in the Bill, as initiated, would have been an imposition on genuine research in the research and university community. However, the Bill has been amended in this respect and the matter must still be examined by the House on Committee Stage.
Why has the Minister of State decided on the strengthening of governmental copyright? This is a regressive step. When in office, I publicly signalled my intention to relax such copyright in favour of wider public interest exemption. I thought I had persuaded my civil servant colleagues of that approach. Will the Minister of State outline  the reason for the reversal in policy? It is difficult to understand the rationale for changing that.
That copyright law should be used to restrict research in an abuse of the concept of copyright. Its origins can be traced, as Deputy Stanton said, back to the British Statute of Anne, 1709. The full title of the statute is “An Act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies during the times herein mentioned”. The title communicates perfectly the intention of the statute.
The definition of an “artistic work” appears to be somewhat primitive from the point of view of modern art and the techniques of some more avant garde artists. This was also raised in the Seanad and it will be a matter for scrutiny in this House.
The Bill effectively gives permission to teachers and students to copy in an educational context. However, it appears that reprographic reproduction is excluded. This is nonsense unless there is an ulterior motive to create a licensing regime for photocopying. This is a totalitarian concept ultimately whereby for photocopying to take place it must happen legally and for it to be legal it must be licensed. Of course, for it to be licensed there must be a new collecting society, in effect, a private licensed tax collector. Collecting societies have not covered themselves in glory and have proved to have a distinct tendency to tyranny and abuse.
The irony of the licensing and collecting approach is that it runs against the entire historic rationale and origins of copyright in the Statute of Anne, 1709. The purpose of this enactment was in part to encourage learning, but also to dismantle in the name of freedom of speech and thought the system of state licensing or censorship that then existed. It is ironic that copyright, the original purpose of which was to extend freedom, is used to limit freedom not in the name of State censorship but in the cause of monopoly profit. Big business and the State are combining to limit freedom in the name of mammon.
The totalitarian impulse in the name of money is again evident in section 54 in the provision that a parent is not a connected person to a child in a school for the purposes of the section, thus allowing collection societies loose on the school concert. There is also a continuation of a remarkable approach to the law in the Bill which is the presumption of guilt on the part of anyone who is alleged to be in breach of copyright law. Accompanying this, a draconian power of seizure is given to rights owners with no provision made for penalising a rights owner where he or she acts abusively in respect of claiming rights and seizure.
It is welcome that the Bill has been amended to make copyright in legislation reside with the Oireachtas. This fully reflects the primacy of Parliament in this parliamentary democracy. However, the Bill might have given statutory effect to the rainbow Government decision, in  which I had a part, to waive copyright on enactments in the interest of freedom of information in respect of an important aspect of citizenship. Will the Minister of State explain the rationale for 125 years for Government copyright?
Broadly, the Bill proposes to introduce into law, in the common law tradition, continental European copyright philosophy and moral right is one example of that. However, this is a radical departure, particularly from the standpoint for culture and the public sphere. In essence, the continental tradition is one of privatising and taking proprietorship of cultural products and creations. This approach is highly developed and well established and the public life of culture functions very well in this model, as anyone familiar with the richness of cultural life on the continent is aware. One part of the explanation is public policy. The state plays an enormous role in cultural life on the Continent. The other part of the explanation lies in the highly elaborate and developed system of arbitration and formal disputes resolution procedures available in continental countries.
The Bill provides that in Ireland the Patents Office will take on this character as well as doing its old job. This could prove to be a disaster. The office has never acted in this fashion or in such a role. It does not have that culture or the staff or resources to do the job. It has another job to get on with in respect of that job. Certainly, in respect of that job, a number of years ago it was left to languish in a worse state than the Companies Registration Office. I do not know whether the Attorney General has approved this section or whether it was published before he came to office. The Minister should ask the Attorney General whether he thinks the Patents Office will be able to take on the role given to it here. The Attorney General, when a Member of the House, brought the state of the Patents Office to our attention.
If the Bill is enacted and if it gives a carte blanche to collecting societies, strengthens their hands further, puts no limits on them, establishes no watchdog regime for them and leaves the Patents Office bereft of resources, expertise and money, there will be a severe restriction on freedom, entirely in the name of money.
Copyright and the law of intellectual property, more generally, is about much more than the Act of 1709. It is a much more decent thing. It is about creating a civilised literate and learned society in which intellectual endeavour is cultivated and the grant-aided tax relief creative community works for the wider social good and the stimulation and enrichment of cultural life. Ideally the State should regulate or intervene only to the extent to which it can be said to further the public interest. Copyright itself is a case in point. It is an artificial construct created by the State with a public interest in mind. In the case of copyright, at any time the public interest may or may not coincide with the interests of any one or any combination of the groups interested in copyright. Providing for the public interest requires balancing the  interests of the various groups against each other and against the general social interest.
It is not surprising there are a number of diverse vested interests who, quite legitimately, want to advocate their case in respect of the detail of this Bill from the Arts Council to the Centre for Independent Living to a variety of industry bodies and so on. For that reason I support the proposal by Deputy Stanton that the relevant select committee be given the opportunity to hear from these vested interests their point of view on the Bill. I am afraid the business of drafting this legislation, notwithstanding its importance and significance, is very much an exclusive pastime. The level of awareness, both in the House and outside, even of those who ought to be concerned with it, is minimalist. As Deputy Stanton said, some of those who ought to be concerned about it are only now becoming aware of it. I am not sure the debate here will provoke widespread interest in it. It ought to be more significant to journalists than a normal Bill coming before the House because there are aspects of it with which they should be concerned. I do not think there is that level of awareness or familiarity with this important Bill. Like Deputy Stanton, I look forward to the Minister providing adequate time, not to delay the passage of the Bill but to hear from the various interest groups and to process Committee Stage having heard that input.
Mr. O'Flynn Mr. O'Flynn
Mr. O'Flynn: I welcome the Bill. It is a substantial Bill that covers every possible angle on the issue of copyright and matters related thereto.
I have had much input from members of the public on various aspects of the Bill. One constituent queried its constitutionality. He said that while copyright is a property right, it raises interesting questions as to its constitutional protection. The Constitution refers to the right of “private ownership of external property”. It is not clear to my constituent if that could be held to include intangible property such as copyright or intellectual property rights. I would appreciate the Minister's clarification on that issue.
Section 23 states the usual practice in relation to the first copyright ownership of intellectual property in countries other than the United States. The intent here is that if a person is paid a wage to produce intellectual property, the employer is deemed to own what has been paid for. It is worth saying this leaves the employer with all the rights and the employee with none and flies in the face of all the current trends and talk of profit sharing. For example, the reality is that most companies will provide people who invent things with a share in the rewards of their success after the costs of exploiting it have first been paid. It may be that the time has come for all intellectual profit sharing to be enshrined in law. This will endow the rights on creative people and it will reward creativity.
Sections 24, 25 and 30 extend the duration of copyright in literary, artistic, dramatic, musical, films and computer-generated works from 50  years to 70 years after the author's death. This provision, had it been in force in the late 1980s, would have meant that the works of W. B. Yeats and James Joyce, to mention just two Irish authors, would still be copyright rather than freely available as now. We should debate those provisions seriously and decide how long copyright should exist rather than take the directives of the European Commission and Council.
Section 31 has important implications for researchers in Ireland. It means the copyright in each volume, part, instalment, issue or episode of a work, such as a periodical publication, subsists separately. Will the Minister clarify whether he regards each paper or article in a journal, which can be cited separately in another such article, paper or publication, or whose abstract can be catalogued with a separate reference number, as a “part” for the purpose of copyright? This would be important in determining the number of such articles or papers that can be copied from a research journal.
Researchers would prefer the freedom to copy selected articles at will from research journals for research or for private study. If the copyright in each of these research papers or articles were to be regarded as subsisting separately, it could allow the copying of more than one of them from the same issue of a research journal, something that is essential for researches. I put it to the Minister that there is a strong legal basis to do so, in so far as each research paper is written as a separate work and, therefore, has original copyright attached to it.
A separate copyright assignment form is always executed for each research paper submitted for publication in a research journal. Certainly the legal position regarding the copying of research papers which is proposed in the Bill is unsatisfactory for researchers. It is unworkable and unenforceable. It is a bad law which every researcher in the country knows will be flouted openly. Bad laws should not be enacted. I appeal to the Minister to reopen the question of the copying of research papers from journals because of the unique format of these publications and the manner in which they are handled by libraries.
Section 39 makes it clear that what it calls “the performance” of a work, which term it defines to include speeches, lectures and sermons among other acts, is a publication. This is nothing new in legal terms but it further strengthens the case of researchers to say that each individual research paper in a journal is a separate work of publication. If they first give the paper orally or by exhibiting a poster at a conference, the work is clearly regarded in law as separate. The associated research paper which appears in a journal as the written proceedings of a conference must certainly be considered as a separate work. The implication is that it should be legally possible for a researcher to copy as many research papers as he and she wants for research or private study. There is a case to be made for this line of logic and I hope the Minister will consider it. This  would be the case if the articles are copied from a book or journal issue which is or purports to be the written proceedings of a conference at which the paper, to use the legal term which I understand researchers do not like, was first performed to the public.
Sections 43 to 47, inclusive, provide wide-ranging powers to punish the secondary infringement of copyright. An example would be the case of a person who allows bootleg recordings to be played at a disco on his or her premises and does not have reason to believe that there would not be a copyright infringement. The powers are severe in that they place the onus on the offender to know that there would not be a copyright infringement at the time of providing the premises.
Sections 48 to 51, inclusive, are important for the public as they provide important exemptions to use copyrighted works without paying a licence fee. Section 60 specifically deals with the copying of articles from periodicals such as research journals.
I wish to refer in particular to sections 49 and 60. I compliment the Minister of State on his acceptance of a key amendment tabled by Senator Henry in the Seanad to certain related sections which addressed one of the concerns of researchers about the Bill in relation to the copying of research papers. The wording “research and private study” means that the provision of these important fair dealing exemptions apply to research in general, not just private research. As initiated the Bill would have impeded normal research practices in universities and research centres.
Researchers and research students need to be able to copy free of licence charges and read selected research papers relating to their specialist field of study. These are published in a well established and professionally regulated manner to ensure the highest standards. The system works well. Researchers and their students write articles, generally called research papers, which are submitted to specialist research journals either directly or sometimes after the presentation of the work at a conference of researchers. The research paper is reviewed by other researchers in the field and often revised before acceptance. It is then published as an article in several pages of a research journal which may have ten or even more than 100 such articles in a single issue.
The publication process is expensive as the circulation of these journals is relatively small compared to mainstream media but it must be realised that the reviewing is done free of charge by the reviewers. It may surprise some Deputies from other fields of work to learn that the authors do not get paid for the articles. In many cases it is the other way around and they must pay a page fee to be published. This practice is especially prevalent in the case of American journals. Some publishers do not charge authors to publish their  research. I single out the Dutch company, Elsevier, for special mention. It has made an important contribution to Ireland in terms of employment in Shannon and especially in its gift of a free subscription for 1999-2000 to all its journals for on-line access by researchers in universities within the State.
That brings me to the controversial section 60. Researchers are concerned that they will be able to continue to be able to make copies of more than one research paper from the same issue of a journal. As section 60(2) stands they will not be permitted to do so. I have been made aware of the detailed concerns of the Irish Research Scientists Association on this matter. I appeal to the Minister of State to bring forward the necessary amendments to enable the copying of more than one research paper from the same journal issue.
I also appeal to him to bring forward a second simple technical amendment to section 60 to which no interest group could reasonably object. Most libraries when they have accumulated one year's or several years' issues of a journal bind the issues together like a hard book to ensure their survival over years of use. As the Bill stands the act of binding several issues means that only one research paper from the entire bound volume can be copied. This anomaly should be removed by a technical amendment as it is unworkable and unfair.
What many researchers would like to see is a situation where each research paper is for copyright purposes treated as a separate published work with the right to make a copy for research or private study. Researchers hope others will read their work. That is the reason they publish it. They do not make any money from publishing their work. It costs them time and money but it is essential for them as researchers to build a reputation. Researchers need a free flow of information with the minimum of obstacles. If we wish to encourage research we need to be conscious of the needs of researchers.
This matter is of major concern to me as a Deputy for Cork North Central, a constituency which may well have the highest concentration of researchers in Ireland. University College Cork, which is located within it, has the highest research income of any university in the State. Within the university there are long established specialist research centres of excellence – the National Microelectronics Research Centre and the National Food Biotechnology Centre. The Cork Institute of Technology has an unparalleled research reputation while ten miles from the boundary of my constituency is located the Agricultural Research Centre at Moorepark, Fermoy.
These are the workplaces of hundreds of researchers whose intellectual lifeblood is access to research papers and many of whom are worried about their future ability to copy research papers without bureaucratic obstacles and free of charge. I draw the attention of the Minister of State to section 87 which contains a good definition of articles in periodicals in the scientific or  technical field that may lawfully be made available to the public without infringement of copyright. The section should be widened to include research papers on subjects which are not scientific or technical. Economics and history research comes to mind.
On behalf of the plain people of Ireland I heartily welcome section 96 which permits us to legally video a television programme for the purposes of watching it later. This is the type of people-friendly approach that we need in our laws and contrasts with the mean-minded attitude in some other copyright areas where owner-interest rules all. Greed rather than need governs the use of the work.
It appears that section 98 only allows a cable programme service, which is legally defined to include MMDS and other potential means, to rebroadcast television channels. It is essential to read the section in conjunction with section 2 regarding the definition of a “cable programme service” which is defined to mean much more than cable television and includes MMDS which is a non-cable television service. It is not clear whether this definition includes the deflector systems of rebroadcasting. I am pleased that this week the Director of Telecommunications Regulation is about to issue certain licences in this domain. I do not want the deflector operators to be tripped up by a technical provision in copyright law that sends us down the road of more legal and social conflict over this people-driven enterprise in response to lack of signal from our national network which has created a genuine demand for a complementary service. Will section 98 permit the owners of a deflector system such as South Coast Television in Cork to rebroadcast a television programme in the usual way that their systems operate?
Much of this Bill is relevant to the Broadcasting Bill and Deputies would do well to examine both. Similar issues arise. For example, as I mentioned in my speech last week on the Broadcasting Bill, section 99 protects the right to make subtitled television programmes. Many sections, especially section 127, give the Garda Síochána powers to tackle the counterfeiters who are the real enemies of the music industry. I wholeheartedly support these efforts. It is these criminals, not the barbers who have the radio turned on in their barber shops, who should be the focus of attention for the enforcers of copyright legislation.
Section 187 is very important in that it provides a right for each university to obtain free books under the copyright laws. It is a form of funding by authors for universities. This is a tradition that originated under former regimes. The universities of Oxford and Cambridge, Trinity College and the British Library, London were copyright libraries of record. It is a clever way to stock university libraries with obscure books. Section 187 is long overdue in the interests of equity. It grants this right to all universities within the State as well as the National Library. I am concerned,  however, about the wording of the provisions that relate to University College Cork. Section 187 states that certain named bodies are to get copies of books within one month of publication. It also stipulates that the NUI will get four copies of the book for use in the four constituent colleges in Dublin, Cork, Galway and Maynooth. Under the existing wording, there is nothing to prevent one of the bodies named being allocated two copies. I would be happier if there was explicit wording to the effect that each of the universities named is entitled to a copy of the book. This will ensure that UCC will be guaranteed one copy, as will all the universities named. That is important in view of the universities becoming essentially independent under the recent Universities Act. We are granting this right to the British Library on a reciprocal basis. We are also granting the right to the two English copyright libraries. The word “England” should be inserted after “Oxford” and “Cambridge” in this section, and to the national libraries of Scotland and Wales, as they grant us reciprocal rights. The two universities in Northern Ireland should be included in this section in the spirit of the practical unification of Ireland. Why not extend this right to Queen's University Belfast and the University of Ulster?
I now want to deal with performers' rights. I am a strong advocate of the general rights of Irish and non-Irish performers. The labourer is indeed worthy of his hire. It is easy to point to the success of bands and singers like The Chieftains, Christy Moore, U2 and Enya, but for every success, 100 small bands could be depending on cash flow. They need the income from their copyright royalties and fees. The organisation which enforces these rights, however, the Irish Musicians' Rights Organisation, IMRO, must also take into account the rights of others. I am sure that organisation realises that hundreds of thousands of ordinary people are trying to make their small shops and family businesses work. They must collect their debts and run their businesses themselves. They have no large organisation to back them up.
I refer particularly to the practice of IMRO of seeking a licence from small businesses and shopkeepers who play the radio in their shops and workplaces. I am amazed at its approach to the use of radios in hotel bedrooms and I cannot believe the organisation is serious in this matter. This and many other matters raises the hackles of ordinary people who are trying to make a living in this country. I will explain the most common complaint I receive in this context.
Most of us are under the impression that radio stations pay a hefty royalty to performers for the right to play their records on a national broadcast to the four corners of Ireland. Why should people playing the radio pay a second royalty for the same performance for a public that would be perfectly entitled under law to bring along their own radios with earphones and listen to the same broadcast while shopping or working? This is  intensely annoying to people and is seen as a form of double taxation.
The concept of listening inspectors in plain clothes, wandering around under cover in shops and factories listening for radios playing reminds me of the stories about the glimmer man checking the gas cookers during the emergency. Will they be asking for a licence fee from people playing radios on the beach? We have had enough. Playing a radio in a public place should be exempted from copyright law, provided the radio is not used to entertain people paying for admission to a premises. I would like the Minister to introduce the necessary amendments to sections 191 to 203, inclusive, of the Bill to allow the playing of radios in shops and workplaces without licences.
I wonder if some of the language contained in section 2, under the definition of what does not constitute “a cable programme service” – I refer to pages 26 and 27 of the Bill – could be similarly used to exclude the proprietors of shops, garages etc. from the obligation to pay for a licence. They could lawfully say that the radio, tape recorder or CD player playing in their premises is in the sole control of the owner.
I want to make one final general comment before concluding. Are the Ministers aware that large media organisations are buying up vast quantities of photographic images and films to which copyright attaches? They are doing this for the purpose of controlling and profiteering from their exploitation in new forms of pay per view and multimedia communications. Images such as famous paintings are included. In years to come this will restrict what is available as common property to all mankind. It is a fundamental abuse of copyright. I am also concerned that in the future, Sky Sports may seek to buy the rights to the All-Ireland finals. Why are we tolerating this type of practice? We should discuss with our European partners ways to stop other restrictive practices such as this abuse of copyright law.
I welcome the Bill. It is important and complex and I hope the Government will examine it line by line. We must safeguard the rights of the creators but in doing so we must not ignore the strong reservations expressed by representatives of consumers, the users of the created art. It is the demand for published works and the audiences who support the performing artists that generate the finance which makes their chosen careers viable.
Mr. Perry Mr. Perry
Mr. Perry: I thank the Minister in advance for bringing the Bill into the select committee next week. That is important as it will allow people to debate it further. As Deputy Stanton correctly stated, this is complex legislation which is new to many Deputies on this side of the House who do not have the back-up and resources to deal with its many aspects.
The Broadcasting Bill was also before the House this week. That is detailed, complex legislation which will allow 35 channels to be broad cast in Ireland through the digitalisation and globalisation of TV. That will be very much part of the copyright question in years to come, in addition to pay per view and the control of the Internet, in that so much material can be readily accessible.
It is useful to put the Bill in its proper context. Its contents are primarily dictated by the need for Ireland to implement European directives and certain international agreements. The contents of the Bill mirror the provisions of the following: the software directive of 1991; the rental and lending right directive of 1992; the directive on satellite broadcasting retransmission of 1993; the term directive of 1993; the database directive of 1996; the Paris Act of Berne; the GATT-TRIPs; and the WIPO treaties. The Bill is a consolidation of all that European legislation which we now hope to implement.
While noting the obligation to enact the provisions of the European directives and international agreements, it is also relevant to note that the draftsman has, in some substantial respects, “borrowed” provisions from the UK Copyright Designs and Patents Act, 1988. From the point of view of enacting legislation, we are not in breach of copyright but many of the provisions in the Bill would be on the Statute Book in the UK.
I want to examine the basic elements which make up copyright law, and the ways in which the law will change by virtue of the Bill when it becomes law. By “basic” I mean the meaning of copyright, the works which enjoy copyright, ownership of copyright, the duration of copyright, the rights of the copyright owner, the exceptions to copyright and the penalties for infringement and remedies of the copyright owner.
What is the meaning of copyright? Copyright is defined afresh in section 17. It is the right of the copyright owner to do or authorise others to do certain things in relation to his or her work. There is nothing new in this but what is new is that the copyright is also stated to be a property right. This may have ramifications which have yet to be explored. It carries the curious possibility that some of the incidents of property ownership, which did not previously apply to copyright, might now become relevant.
It is also stated for the first time that copyright protection will not extend to the ideas and principles which underlie any element of a work. It has always been a basic tenet of copyright that it only encompasses the expression of an idea and not the idea itself. The wonder is not that this is stated in the Bill but that it was not previously specified in the legislation.
Section 17 goes on to remove from the meaning of “copyright” a work which infringes the copyright in another work or which is a copy of a work previously made available to the public, so that an infringing work cannot enjoy its own copyright. This was, effectively, the position previously, but it is stated here clearly for the first time. By comparison with the 1963 Act, the  meaning of copyright is stated in a simpler but more comprehensive way.
Section 17 also contains a list of works which will enjoy copyright. These include original literary, dramatic, musical or artistic works; sound recordings and films; and original databases, which is very important, given, as Deputy Rabbitte said, the difficulties of controlling and policing the Internet. The commercialisation of copyright is big business and there will be litigation over vast sums of money.
The list in section 17 does not add anything new to the kinds of works which were protected by the 1963 Act. However, although there is no new category of subject matter in section 17, by virtue of expanded definitions, the terms used to describe the types of protected work encompass a much broader range of potential material than underthe 1963 Act; for example, the new definitions of “sounding recording”, “film” and “database”.
Under the 1963 Act, protected works were classified into works which were covered under Part II of the Act and works covered under Part III. Part II dealt with the works of the creator – the literary author, the composer of music, the visual artist. Part III dealt with the rights of the exploiter – the maker of the sound recording, the film maker, the broadcaster and the publisher. The Bill, by drawing all protected works together in section 17, effectively abolishes the old distinction between Part II and Part III works. This has wide-reaching implications, which will be discussed next week in the House.
The provisions concerning the ownership of copyright are contained in sections 21 to 23. It is the “author” of a work who shall be the first owner of the copyright in all section 17 works. “Author” is defined widely as “the person who created the work”.
The provisions in the 1963 Act relating to the duration of copyright had already been changed before the publication of the Bill, when the EU duration directive became law in 1995 by statutory instrument. The statutory instrument is revoked and its provisions are restated in the Bill. This means that for literary, dramatic, musical and artistic works, the copyright term is extended from 50 to 70 years. In the case of a film, the term is 70 years after the death of the last of certain of the persons involved in the making of the film. A 50 year term also applies to sound recordings, broadcasts and cable programmes.
In relation to literary works, some interesting questions arise about works which went out of copyright under the 1963 Act, when the old term of “life of the author and 50 years” expired, and then came back into copyright when the statutory instrument was enacted in 1995. One has to look hard to find anything in the Bill about this. Eventually, one comes across section 9 of the First Schedule, Part I, at the back of the Bill, which deals with transitional provisions. This states that the duration of copyright in works which qualify for copyright protection when the  Bill is made law will continue to be determined by reference to the statutory instrument, although the instrument has been revoked. This means the EU directive, as transposed in the statutory instrument, will continue to govern the awkward situation of works coming back into copyright.
As previously, anyone making available to the public for the first time a work which is already out of copyright will enjoy a 25 year term of protection. Therefore, publishers and other people can buy works that are out of copyright cheaply and then exploit them commercially. Such people will cherry-pick the better pieces. There is a great deal of money to be made in this area. The original publisher of the work 50 years ago is now likely to be dead and these works can be bought cheaply.
Deputy Rabbitte stated that the period for Oireachtas copyright is being increased to 125 years. Given that Dáil debates are now available on the Internet, one wonders why that copyright period has been increased to 125 years, when the normal period is 50 to 70 years.
As a restaurant owner and publican, the concerns of retailers are close to my heart. This Bill has far reaching implications for the service industry, particularly the hotel, licensed premises and restaurant trades. When the Copyright Act, 1963, was passed, it represented a compromise between economically powerful interests, such as multinational record companies, traditional copyright holders and certain State policies. As a result, the 1963 Act provided for two types of copyright – the absolute copyright of the composer of musical work and the qualified, or secondary, copyright of the record companies.
The net effect of this is that the composer who has the absolute copyright is entitled to refuse to allow the material to be used without a licence and the payment of a royalty. On the other hand, the owner of the secondary copyright is not entitled to refuse, but is entitled to the payment of a charge called equitable remuneration if the material for public performance.
Section 17 of the Bill abolishes the distinction between the rights of record companies and composers. Under this proposed section, the record companies are given the same level of veto over the playing of sound recordings as composers enjoy in respect of musical works. This is manifestly unjust and unnecessary and is hugely detrimental to the interests of music users. This huge anomaly should be debated next week in the House.
History has shown that, unless prevented by law from so doing, large multinational record companies will abuse their positions vis-à-vis the music users. This is controlled by a very small number of players in the field who have huge power. It was brought to my attention in the late 1980s that PPI, a group which purports to represent record companies and which owns 80 per cent of the copyright in sound recordings played in this country, increased its tariffs by 1600 per cent. Who gives PPI and IMRO their licences?  They must be answerable to somebody. They cannot dictate charges and monopolise the market. We are in the driving seat here. If this organisation was inefficient for so long, why should it get such an increase at a time of single figure rates of inflation?
While this massive Bill is mind-boggling, we must examine the simple aspects of the enforcement of copyright legislation in the State. This will have a huge impact on the commercial interests of those who are trying to survive in business, employing staff and complying with regulations and controls. The service industry receives very little support from the State. There are 160,000 small business in this country, 90 per cent of which employ less than 13 people. This is a significant sector of the economy and we must ensure that there is a balance and proper regulation governing those who call to such companies to collect tariffs.
IMRO represents the interests of composers who have absolute copyright, and increased its charges by 28 per cent. This was a reasonable increase. However, does the Minister intend to establish a single regulatory authority to control the charge levied? I am particularly interested in small businesses. This system could operate similar to the television licence whereby RTE, as the national broadcaster, is the sole beneficiary of the licence fee. Will any of the fees paid come back into the State? Is there any accountability regarding the amount of money to be collected by way of royalties? Where will this money go to and what are these people doing for it? Composers and publishers are entitled to their share. We are talking about a very significant amount of money and a portion of it should be used to encourage new people entering the market. This situation requires legislation and will be exploited if the Minister is not careful.
What is to stop a different group claiming to represent a different interest? Could such people obtain a licence which allowed them to demand £50 under threat of seeking an injunction? When the charges were challenged by hotel and nightclub owners and RTE, PPI obtained injunctions preventing any recorded music being played unless and until the high tariffs it was seeking were paid up-front. Some people in Sligo felt that it was similar to the Revenue Commissioners coming in – their names were in the newspapers and they felt they were not complying with the law. The wrong message went out about people and it was blackmail. People had no choice but to pay up or go to court. Regulation must be fair so that people know there is an assessment carried out by the Minister's office and that the tariff is £500 per week which is to be paid at the beginning of the year following which they are entitled to operate. We do not want an unregulated situation where people go around using heavy-handed tactics. I am not talking about copyright as one would need a senior counsel to go through that area. I am concerned about the interests of the  business community. Deputy Rabbitte correctly stated that there was a cultural aspect to this legislation. However, this Bill is about commercial interests – big money for a large number of people. We want everyone to get their fair share but we do not want the legislation to make millionaires out of certain people.
The net result was that hotel owners were left with no option but to pay the amounts demanded or close. This was a serious abuse of power. The situation continued for several years until a Supreme Court decision confirmed that the organisation and owners of secondary copyright were not entitled to behave in this fashion or to demand large payments in advance of music being played, but were only entitled to equitable payments for the use of secondary recordings on which they could prove copyright. If the amount of equitable payment cannot be agreed the 1963 Act allows for the dispute to be referred to the controller of industrial and commercial property. The controller has a new role to play under this legislation and will become very busy. The office has been in operation since 1963 but will he be given increased powers? Will his job specification change due to this major legislation? I am concerned about the interests of businesses, particularly small firms, and I will pursue those interests next week. Will there be clarification of the position regarding the controller's responsibilities? Many people are not aware of this office and its powers and commercial interests, particularly service industries, need clarification on this issue.
Section 17 needs to be examined as it appears unjust. It will enable record companies to prevent sound recordings being played in public, except on their terms. This raises serious questions. Record companies receive profits from sales of sound recordings and it is now proposed to give them the right to charge significant levies in advance of the use of those recordings. The economy is very buoyant at present and sales of records and CDs are very high. What is required is not the abolition of the distinction between the copyright of the composer and the record company, but a streamlined, fast and efficient mechanism whereby the amount of equitable remuneration to be paid to the owners of secondary copyright can be determined. The resources to achieve this do not appear to be available to the controller as the dispute continues. The presumption in section 134 that the Intellectual Property (Miscellaneous Provisions) Act, 1998, provides that in copyright proceedings it is presumed that the person who claims to be the owner of the copyright is the owner unless the contrary is proved, is a significant change. I appeal to the Minister and his officials to look at this issue.
Mr. McGuinness Mr. McGuinness
Mr. McGuinness: This Bill has focused the minds of backbench Deputies on the unavailability of research staff to help them understand the nature and direction of the legislation. This is comprehensive legislation which needs quite an  amount of analysis and time. In preparing my contribution I became aware of the unavailability of people to assist in research. The Bill covers a complex legal minefield. It is a comprehensive Bill which updates previous legislation. I commend the Minister and all involved for bringing it before the House as it gives Members an opportunity to tease out the detail and make an input.
It is said that God or the Devil is in the detail and that is the case with legislation such as this.
Mrs. Owen Mrs. Owen
Mrs. Owen: It is God on this side of the House and the Devil on the Government side.
Mr. McGuinness Mr. McGuinness
Mr. McGuinness: That is the Deputy's opinion. Given the creative talents of the Irish people and our commitment to excellence in design, whether in traditional crafts, new developments in information technology, software and web site design and our ability to perform and produce artistic creations admired by audiences worldwide, it is imperative that the Bill be put in place to protect the copyright of all our work. One need only read today's newspapers to see the complications and legal cases which can arise from copyright issues. Copyright and the Irish people's creativity is fundamental to the on-going development of our modern, progressive economy as we know it.
The protection offered in the Bill gives encouragement to those actively involved in traditional artistic categories of literary, dramatic, musical and artistic works to continue, knowing that their intellectual investment is protected and that income derived on an ongoing basis through copyright is secured and covered by law. The comfort of the legislation means that those involved in creative activity can dedicate themselves to new and innovative creations for which this country has become famous.
Given that our Irishness is impacting in a very positive way on the world stage, it is imperative that all EU directives and laws are reflected in modern Irish legislation. The fact that the EU was largely inactive in the area of intellectual property until the late 1980s means that its laws, particularly in relation to emerging technologies, are important for the protection of our IT sector, which is a world leader in terms of development, be it in software, website design etc.
Recently we saw that Baltimore Technologies Limited designed signature software for the world market which is now widely used, including by the Taoiseach and Bill Clinton in signing agreements. This development is a good example of the type of investment which is demanded in this area in order to get a product from a thought or dream to reality. I have no doubt that many hours were spent developing this idea and that much finance was pumped into its support and development. Because of this the company has a right to the comfort of knowing that it will derive financial support from the product for a number of years. Likewise, there is a host of small  businesses throughout the country developing software products. This work must be protected to ensure an income for the companies concerned in the future. Copyright will make these companies financially viable in the future. We are on the edge of what can be achieved in terms of information technologies, and the development by these companies of new modern software and perhaps hardware will lead to a new market development in Ireland. Because we are at the cutting edge of all these developments these products, given the right copyright protection, will lead us to an entirely new area of job creation. The young graduates now available in the marketplace are showing the way in this sector, not just at home but also abroad. I have no doubt that new companies being created abroad by these people will soon impact on the Irish economy. Therefore, it is vital that this legislation is enacted.
Legal access to copyright protection should be simplified in some form. There is a need to relax access to this type of copyright and for a greater understanding of people in the workforce creating new designs who need to be aware of what they can do with products they design. These people need to understand copyright issues and there is, therefore, a need for us as legislators to ensure access for them is made simple and that they can register their product or idea in an easy fashion and within a reasonable time. It is necessary for us to keep up to speed with developments given the pace of the marketplace and the technological developments which are taking place almost on an hourly basis and to ensure that people who devote their time and energy to this type of creativity are catered for in legislation.
The operation of the worldwide web makes it even more difficult to protect copyright which has been registered or for the State or the EU to police certain aspects of copyright. We need some provision in legislation whereby we can continue to revisit the laws we put in place in order to update legislation in line with what is happening in the real world. We must examine the resources and staff made available to the Departments working in this area. We must ensure that the State's support mechanism is examined. Have we sufficient staff operating in this area? Do we require certain expertise from the staff we employ? Have we the technology required in the Department to continue to monitor the technological advances or the breaches which are taking place in terms of the worldwide web etc.? What policing exists in terms of current legislation? What policing will this new legislation require in future? What action will we take, if any, in the case of a breach of the law relative to a Department or a function of the Government? Is there somebody to police this area? I believe nobody is policing this area.
Earlier a case was made regarding those who will benefit from this legislation. We must ensure that we are not creating a monster in terms of those who would take advantage of the legislation  almost to punish others and use it in a less than legitimate way. We must be conscious of this and understand that we must police all activity in this area. I hope that when the Bill is being teased out on Committee Stage all these points will be raised and debated and that constructive and worthwhile amendments which make the Bill work more efficiently will be accepted and included in the Bill.
Public awareness is another issue relative to the Bill. How aware is the public of copyright issues? I believe the public understands the notion of copyright, but because of the world in which we live and the legal cases which are taken it is imperative the Government takes some action to ensure a public awareness campaign is launched so people understand what we are trying to achieve through this Bill and so their rights in relation to it. Often a wrong interpretation is placed on the issue of copyright. There is a misunderstanding even regarding current legislation. Because the legislation is comprehensive there is a need for us as legislators to explain in detail to the general public exactly what it is about.
We can give a number of tangible examples on how this Bill and previous legislation impacts on the general public. Counterfeiters involved in copying tapes or CDs are selling their product on a daily basis. We can deal with these people in terms of copyright. Even in this instance we do not have sufficient resources available to the State to ensure all those involved in the black market are dealt with under the law. Therefore, the rights of artists and performers is in effect not protected to the full extent. The Bill underlines the need for further policing measures which can work. The full rigours of the law should be brought to bear on people who copy videos, CDs and tapes and their operations should be closed down as swiftly and effectively as possible.
In terms of education the new developments in technology bring about the development of outreach centres in universities. In particular various courses are delivered from Queen's University in the case of Kilkenny, University College Cork, various Dublin universities and NUI, Maynooth. The material used in these courses is produced by lecturers and others in the education sector and we must ensure there is enough freedom under the legislation to avoid causing them concern.
Sport has been mentioned by previous speakers. Given that this Bill is before the House at the same time as the Broadcasting Bill, it would be sensible to try to cross-reference what is happening in broadcasting with what is happening in the copyright process under this legislation. The deflector system is a case in point. How does the copyright legislation impact on that? Certain areas do not have an effective broadcasting service and they must use the deflector system. How will this legislation affect the broadcasting legislation in this regard?
There is a move by companies to capture or hijack the enjoyment by the public of sporting  events which have a worldwide interest. That is a type of copyright. They are taking the right to view these events from the general public unless the public is willing to pay to view them. That should not be the case. The companies have the right to purchase the events but there must be some provision for the good of the general public. This country should take a stand through its legislation, whether broadcasting or copyright, to ensure as much sport as possible is put on the public airwaves and not restricted to a minority who can afford to purchase viewing rights. We should examine the implications of what is happening for this country and the people who enjoy sport. We should develop legislation which will give us access to such events and protect the free broadcasting of Irish sport on the airwaves.
I wish to refer to the submission Members received from the Irish Hotels Federation, the Irish Nightclub Industry Association and the Vintners Federation of Ireland. All legislation passed by the House should be policed. It should be effective legislation and should not have a negative impact such as that described in the submission from the three groups I mentioned. There is no point making law if it cannot be enforced. That is one of the complications with a number of aspects of this Bill.
According as law is made, one can be sure some commercial body will endeavour to make an ass of it. That is the case with regard to IMRO and how it impacts on the public and businesses such as hotels, nightclubs and pubs. Most shops and supermarkets, apart from the premises of the three organisations I mentioned, will at some stage turn on the radio or play tapes for the enjoyment of the public. That is true even of Deputy O'Flynn's hairdressers.
Mrs. Owen Mrs. Owen
Mrs. Owen: Has he a hairdressers as well?
Mr. McGuinness Mr. McGuinness
Mr. McGuinness: Yes.
Mrs. Owen Mrs. Owen
Mrs. Owen: Holy God.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: It is news to me.
Mr. McGuinness Mr. McGuinness
Mr. McGuinness: We must be conscious of what is happening outside. Current legislation has made it impossible for members of the three organisations to carry on their businesses. People enjoy shopping and socialising in hotels and pubs. In Kilkenny, which attracts huge numbers of tourists, there is a huge effort to make the city as comfortable and relaxing as possible. To achieve that, hotels and other such premises will generally play a tape or the radio. However, the current legislation makes it almost impossible for these organisations to continue that practice. It, therefore, has a negative impact on the public who use these venues.
The Irish Hotels Federation says it has major worries about the enormous power being given under the Bill to PPI, Phonographic Performance Ireland, the collecting agency which collects fees  on behalf of multinational record companies. Their other concerns include the presumption of ownership given to persons claiming copyright until the contrary is proved. The submission claims that is contrary to natural justice and could be unconstitutional. This area is a minefield of legal difficulties and we should not pass them on to businesses. They have enough to do keeping their doors open without worrying about whether to play the radio or a tape in the premises.
The organisations also refer to the absence of a convenient mechanism by which disputes on the level of entitlement to copyright and royalty payments can be resolved. This issue should be simplified, not complicated with heavy legal argument. We should ensure the legislation is not so much simple as easily enforceable by either side of a dispute without recourse to complex legal argument.
The inclusion of hotel bedrooms as places of public performance for the purpose of levying copyright duties on radios and televisions is unfair and onerous. Hotel bedrooms provide accommodation for travellers as an alternative to their normal place of abode and are, according to the submission, private places. I support that view. The interpretation of the legislation is being carried too far by organisations outside the Oireachtas who will try to enforce it.
I support the case made by the three organisations. Perhaps on Committee Stage the Minister of State will address their concerns. The organisations met the Minister of State recently so he understands their case. It is simply a matter of giving it reasonable accommodation in the legislation.
Mrs. Owen Mrs. Owen
Mrs. Owen: I have not previously seen a Bill of this girth and complexity in my 17 or so years in the Oireachtas. I commend the intellectual property unit of the Department on its work. I can only begin to imagine how difficult it was to arrive at some degree of certainty about what should be included in the legislation. No doubt they and the Minister of State would be the first to admit that they might not have got everything right.
Much of the legislation is predicated on and taken from the 1988 legislation passed in the UK. Our system appears to be based on the US and UK examples and experience. For that reason, the Bill merits great scrutiny. Another indication of the complexity of the legislation is that only recently have a number of the organisations, associations and individuals who will be affected by its provisions been alerted to the changes it will bring to their lives. One or two organisations were in the frame, as it were, when the Bill came before the Seanad. They lobbied Senators about their concerns when the Bill was introduced in the Seanad and some of their concerns were addressed by Ministerial amendments, but since then many more people with an interest in this subject have emerged and sent us submissions.
On my suggestion and that of Deputy Stanton – whom I commend for the lead role he has  taken in dealing with this Bill on behalf of the Fine Gael Party – I approached the Chairman of the Committee on Enterprise and Small Business. We discussed the complexity of this legislation and the difficult task faced by the Minister of State in ensuring the fulfilment of a commitment given by the Minister for Enterprise, Trade and Employment that the Bill would be passed by the end of this year to prevent a challenge for not implementing the terms of the TRIPs Agreement, the Trade-Related Aspects of Intellectual Property Rights Agreement.
We saved ourselves from execution by introducing a minor amendment to copyright legislation in 1998, but a number of legal actions under Article 169 of the European Treaty are hanging over us like the sword of Damocles, if this legislation is not passed. I do not want the good name of Ireland dragged through the courts and I understand the imperative of the Minister of State. This, unfortunately, puts the Opposition into a pressure pot in terms of the manner in which we must deal with the legislation. I would prefer if Second and Committee Stages were not debated for at least another six months to give the Opposition, the Minister of State and his staff an opportunity to reflect on the concerns that are only now emerging. While many of these organisations have had a chance to talk to the Minister of State or his staff, most of them have only done so following the introduction of the Bill in the Seanad. The earlier method of circulating the Bill in draft form did not appear to work.
I suggested to the Chairman of the Committee on Enterprise and Small Business that the committee should meet the groups concerned, Department officials and, hopefully, the Minister of State to facilitate a round table discussion on the legislation before dealing with Committee Stage. I admit, without shame, that if we proceed to deal with Committee Stage without such a discussion, groups such as the Irish Hotels Federation, the business software alliance, librarians, IMRO, record producers and various other groups will ask me or other members of the Opposition to table amendments and when we do so Department officials will prepare speaking notes for the Minister of State which will state they cannot be accepted for certain reasons. Following that my intellectual capacity will probably wither because I will not be able to argue the case for their inclusion and the Minister of State might not be able to argue the case for their inappropriateness. It would be much more beneficial if the Department officials, who have expertise in this area, argued these points with the bodies concerned. I commend the chairman of the committee, Deputy Callely, on securing the agreement of the committee and the Minister of State to do this. That will short-circuit the Committee Stage proceedings and the Minister of State can then table amendments he considers appropriate.
This is a door-stopper of a Bill. We received good deal of correspondence on this subject. In particular, a submission on the first recorded case  of copyright infringement caught my eye. Many Members may not know that the first recorded case of copyright infringement occurred in the 6th century in County Donegal when St. Finian accused St. Columcille of copying the text from the Book of Durrow without his permission, at which time the High King, Diarmuid, having studied the case, made his famous decree, “To every cow its calf, to every book its copy.” Despite us thinking we are being landed on the horns of a dilemma in trying to understand this legislation, in the 6th century some people were infringing copyright, although it was probably not called that then. They were copying books – artistic literary property – that belonged to other people.
It was an artist who wrote to me about this first infringement. Deputy Stanton referred to droit de suite, which for artists is very important and has been almost ignored in this legislation. I have a personal interest in this aspect, as my husband paints and, although he does not sell his paintings, he is very protective of their copyright. He feels his paintings are like children and he does not want to lose out in respect of the many hours of painting he has put into them.
A good artist may sell their paintings for £100 or £200 or, if he or she is lucky, get £20,000 for it. If that painting changes hands, it might sell for a good deal more. One of Caravaggio sold for £19,000 in Christies, but once it was discovered to be a Caravaggio it was worth £10 million. If Caravaggio were alive and got £19,000 for that painting, he would feel very sore if he if he did not get some benefit if was sold later for £10 million. He would have every right to feel sore about it because it was his artistic achievement and ability that made the painting so valuable. However, he is not around to tell us how he would feel about it.
A provision covering droit de suite – the right to follow on – must be included in the legislation. It is the right of people to benefit if their work of artistic property is sold later for a much higher price. The Artists Association of Ireland has pleaded with the Minister of State to ensure a provision dealing with droit de suite is included in the legislation. I ask the Minister of State to table an amendment to this effect on Committee Stage.
We all understand property rights but not copyright. For example, my car is my property and if an offender stole it from outside my house and was pursued and caught, the law would take its course and the offender would be prosecuted. The concept of copyright and intellectual property, however, is difficult to understand. We do not readily associate rights with people who have completed artistic work. When we hear heavy metal music, pop music or a lovely song on the radio, we think it is our right to listen to it. As Deputy McGuinness said, music may help people relax in a hairdressing salon, even if it is one owned Deputy O'Flynn. We consider music to be  public property, but we do not consider it to be somebody's property. That is why it is difficult to under the concept of copyright.
When U2, Boyzone, Westlife, Sinead O'Connor or somebody else makes a record, people believe they get paid for the record. They get paid when they perform at concerts and for being well know artists, but they do not know that as artistic writers or perhaps artistic performers – which is a related right – they are entitled to some kind of benefit into the future for that work. Irish people in general object to paying for the music they hear on the radio. Vintners, hairdressers, dentists and others have objected to that. The Minister of State must address the lack of understanding about people paying into the future for a person's intellectual property, invention of new software, painting or book so that people will be willing to implement the law and obey it. That is a major hurdle and is a difficult subject to discuss on radio. The Minister must get over that hurdle before people will implement and obey the law.
This is a difficult subject to talk about on radio. It is not good material for chat shows, such as “The Marian Finucane Show”. People's eyes glaze over when the Bill is mentioned. However, if they were told it would not be possible for a doctor to play pleasant music in the waiting room to help them to relax unless a licence fee is paid or that they could be prosecuted for buying illicit tapes or compact discs on the street, it would become important. It is a turgid subject at present. I hope the Minister enlivens the debate between now and the passing of this Bill.
It will be extremely difficult to implement and police many parts of this legislation. I am concerned about the role of the controller. I do not mean any disrespect to the controller, but that office has not worked. It is wrong of the Minister to automatically transfer the powers and enforcement procedures of this legislation to the existing format of the office of the controller.
Many sections of this Bill mirror UK legislation, so why did the Minister not mirror the tribunal which exists under UK legislation and which allows experts from a variety of areas to make a judgment? People will believe a judgment is fair if it is made at a tribunal, but they may feel they will not get a fair hearing if they make their case to the controller as he may have a certain view. I am concerned the Minister will reply to any fundamental change by saying we should see if the legislation works and, if not, we can amend it in six months or a year. If the Minister changed it to a tribunal, it would change some of the other flaws highlighted. It would also prevent the Minister from having to go through the other submissions and it would create a good base for this legislation from the beginning. I have no doubt such important legislation will end up in court. That is why the Minister should rethink the concept of a tribunal versus the controller. I hope he takes our views seriously because this is an important matter.
 A number of groups lobbied us late and I told them this legislation did not just appear today or yesterday. There was a great deal of publicity when the draft copy of the legislation was published, but people did not realise its importance. However, that has changed and we should listen to them.
The first groups which were on the ball when the legislation was introduced in the Seanad were the National Newspapers of Ireland and the NUJ. I know people are not interested in what happens here on a Thursday but I have no doubt some journalists are listening to what we say in their offices, although there are not any journalists in the Press Gallery. I thought one or two journalists, representing different forms of the media, would have been here given how important this legislation is for their industry.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: They are watching the Deputy.
Mrs. Owen Mrs. Owen
Mrs. Owen: The National Newspapers of Ireland expressed concern to the Minister about section 23. During the debate in the Seanad the Minister introduced an amendment to ensure the copyright on the work of a journalist employed by a newspaper would be first owned by the newspaper. I accept the logic behind that. The same applies to a person who is employed to use his intellect and skill to make computers or parts of computers.
The newspapers have accepted the change made by the Minister but they are unhappy with section 23(2). The National Union of Journalists has also expressed concerns about it and want it deleted. I hope the Minister will be able to act as Solomon in this case and find the right measure to allow staff journalists to have intellectual property rights to their work. One of the difficulties is that newspaper ownership is invested almost entirely in one person.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: Some Senators from the Deputy's party wanted all ownership to be with the newspapers.
Mrs. Owen Mrs. Owen
Mrs. Owen: I realise that. Librarians are concerned about copying in libraries and they want to ensure this Bill will not stop them from doing that. Deputy McGuinness mentioned the serious case made by the Irish Hotels Federation. The business software alliance wants to know how it will be policed and how we can ensure software is not copied. Record companies have also made submissions. A number of amendments have been suggested to the Minister and I hope he takes them on board. Film Makers Ireland made a submission because it is concerned about some elements of the legislation. The Irish Copyright Licensing Agency also made a submission.
A professor of copyright law looked at this legislation and said the licensing system was incomprehensible and unworkable. If someone with such skill and expertise tells us that, we must take their views on board. I welcome the oppor tunity next Wednesday to discuss this prior to Committee Stage.
Mr. Higgins (Dublin West) Mr. Higgins (Dublin West)
Mr. Higgins (Dublin West): I seek clarification from the Minister about two representations made to me on the Bill. Deputy Owen mentioned the early history of this issue. One of the history lessons we learned in primary school was the monkish dispute and I remember the words of the judgment, “le gach bó a gamhain agus le gach leabhar a mhacasamhail”.
The National Union of Journalists, which represents the interests of journalists, has made known to me its concern about excessive power being given to newspaper proprietors to control its work. Having studied the relevant section of the Bill, I agree it gives inordinate power to newspaper proprietors. That is particularly the case in view of the concentration of ownership of newspapers in a few hands. Although people speak of a free press and freedom of expression, there is a relentless concentration of ownership in the hands of few major media outlets. Independent Newspapers, for example, not only controls a large slice of the national market but also the bulk of provincial papers. This shows how much power is concentrated in very few hands. Can the Minister justify his insistence, in the disputed subsections 23(1) and 23(2), on further concentrating power in those hands by giving considerable rights to newspaper proprietors over the work of journalists? I can foresee this legislation being abused, even in this country. Jonathan Pilger has done outstanding work in exposing serious injustices, the repression of poor people in forgotten countries, the armaments industry and the activities of multinational cartels and Governments in exploiting Third World people. Jonathan Pilger revealed to the world the horror being endured in East Timor. If articles by such a journalist were published in a powerful Irish newspaper and if they touched on the interests of the newspaper or were critical of interests which had a commercial relationship to the newspaper's proprietor, that proprietor could use the power the Minister proposes to give him to prevent further reproduction of those criticisms. In a context where people speak of freedom of expression, this gives undue power to powerful interests and I would like to hear the Minister respond to this.
Representations were made by the Centre for Independent Living. I do not know if the Minister has met this group.
Mrs. Owen Mrs. Owen
Mrs. Owen: That group has been invited to make a submission at next week's meeting.
Mr. Higgins (Dublin West) Mr. Higgins (Dublin West)
Mr. Higgins (Dublin West): The group has made the very relevant point that boards or authorities which have the right to have works delivered to them should require that books are made available in electronic form so that they are accessible to people with disabilities and they have suggested amendments which would make provision for this.
Mr. T. Kitt Mr. T. Kitt
 Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): I thank the Deputies who have contributed to the debate. I agree with Deputy Owen that this Bill is a complex one which Opposition Deputies who do not have the resources of departmental officials might be tempted to allow to pass undisputed. Deputy Owen is right when she says it is not possible for the Government to get everything right and close scrutiny is warranted in this case. The Bill covers a wide range of areas affecting Irish society and the economy. Reference was made to the fact that we are not paying sufficient attention to the cultural dimension of the Bill. I reject that charge. I have a great interest in the cultural dimension of the Bill. I have followed developments in this area and I have taken particular interest in the elements in the Bill which deal with the rights of writers, artists, performers, film makers and those who work in the music industry. Much has been said of the MTV extravaganza which is taking place today in our capital city.
Mrs. Owen Mrs. Owen
Mrs. Owen: Did the Minister get us tickets yet?
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: No, I did not manage to get tickets. I understand the Minister for Tourism, Sport and Recreation will be there.
Mrs. Owen Mrs. Owen
Mrs. Owen: I would not doubt it.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: The MTV awards ceremony is a tremendous global event and highlights the strength of our own music industry. I am speaking of the many individual song writers and performers which Ireland has produced over many years. I heard a discussion on “Morning Ireland” today about the dangers of the current bland element in the popular music industry compared to the previous search for novel and individual material. Ireland has been good at producing artists with their own interpretations and individual skills. I believe these are known as garage bands. We strive to seek out individual artists who have something different to offer. It is vital that this Bill protect these artists and performers and this is why it is so important.
This debate has focused our attention on certain elements of the industry and one of these is the role of collecting agencies. I will refer shortly to the question of collecting agencies. At an earlier stage of these discussions I wrote to them and I hope they are listening like others whom we have asked to listen. They have much work to do in explaining their role in this debate.
There is a need for an information programme to get important messages across to the public. Deputies Stanton and Perry referred to this and I concur with them. This issue had emerged before I took up this Ministry of State and since coming to office I have endeavoured to publicise it in various media. Perhaps because the issue is too detailed, complex or expansive it is unfortunately not newsworthy. This is a great pity. I hope  those involved in the media will take a greater interest in it. Groups such as the software alliance and the newspaper and music industries have taken a strong role in presenting their problems. Sectoral interests have managed to bring attention to their problems.
Mrs. Owen Mrs. Owen
Mrs. Owen: It is very important that they know about the meeting next Wednesday so they can listen to the round table discussion.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: Yes, indeed. The work of the committee in advancing this information process is vital. There is a great deal of work for all of us but I would remind people from whatever sector, be it software, the music industry or cultural areas, with an interest in this area to endeavour to get the message across to the public in whatever way they can because we can only do so much here. I thank the Deputies who have contributed to the debate and who have endeavoured to do this.
The other interesting aspect of this debate has been the contributions which Senators, in particular, made regarding traditional music. We have debated that here also. There is a strong interest in this area and Members of this House and the other House made important contributions on that aspect of the Bill.
In researching this legislation it was interesting to find that when the Copyright Bill, 1962, was being debated the late Jack Lynch was Minister and former Deputy Declan Costello was Opposition spokesman. It makes very interesting reading and it is worthy of mention. The language of the time was different but many of the issues raised were the same. The scrutiny it was given by our former colleagues is worth considering.
I propose to deal with as many of the questions which were raised as possible and I hope Deputies will understand my approach. Due of the length of the Bill and the many sectors being dealt with, I am anxious to try to get it right. That has been my approach from the start. I acknowledge the work of Senators in the course of the debate in the other House. Their contributions helped to improve the Bill. It is a better Bill having gone through that process and I hope it will be improved further when it is passed through this Chamber.
To take the issues in the order in which they were raised, Deputy Stanton referred to the area of presumptions. The provisions on presumptions contained in section 134 are important in securing effective schemes of remedy and penalty since without them the ordinary law of evidence would place an impossible burden on many copyright holders in proving their case. For example, a music rights holder such as an Irish collecting society could be faced with blank denial on the part of a defendant that copyright subsisted even in patently modern songs with clear identified composers and authors, along with further denials of the existence of assignments and licences of the copyright instances concerned which brought  the disputed rights into the rights holder's hands. The consequences of such a defence could be to require the collecting society to marshal not only affidavit evidence from home and aboard but a large number of witnesses, many of whom would be from overseas, to face cross-examinations on their affidavits. This is the position at present. The situation which obtains under the 1963 Act represents a wholly unreasonable restriction in the access of rights holders to justice. The Government is convinced it is necessary to remove this unfair burden for rights holders and section 134 represents a straightforward and effective way of redressing this manifest imbalance in copyright proceedings under the present law.
Regarding concerns that the provisions of section 122 might undermine the evidentiary presumptions in favour of plaintiffs in section 134, I would prefer at this stage not to comment in detail on this point. However, discussions between my Department and the Office of the Attorney General have suggested that there may be a problem here and I am now considering the possibility of an amendment to rectify the situation. To repeat the point I made earlier, there are obviously issues which have emerged in the course of the consultation process and the debate in the Seanad which it will be well within our capacity to address on Committee Stage.
The exclusive rights of owners of sound recordings were raised by Deputy Stanton. He asked whether the location of exclusive rights to owners of sound recordings under section 17 may create an imbalance between the rights of the sound recording industry and users of sound recordings. I received a number of submissions on this matter which I am carefully and urgently considering. In the event that I conclude that a change is necessary, I will bring forward an appropriate amendment on Committee and Report Stages.
The droit de suite section was raised by Deputy Stanton. I have carefully considered this question of artists' resale rights in the context of current EU discussions on a possible directive on this subject. I came to essentially the same conclusion as the previous Government. Deputy Rabbitte will be well aware that the only artists likely to benefit are the small minority of prosperous artists with a strong secondary market in their works. More often than not, the artist has died and it is their estate which benefits. On the other hand jobs could be lost in the arts sales business as a result of a measure which would, in Irish conditions, do little more than cover its collecting costs. For these reasons, the Government continues to oppose the droit de suite. The Deputy rightly referred to a recent internal market meeting which I attended. However, the negotiations, as Deputy Stanton said, have not yet concluded and the question of whether droit de suite is pursued in Ireland will depend on the outcome of these negotiations. Again this is something which I would be glad to discuss with the Deputy on  Committee Stage. There have been negotiations on the matter between the Taoiseach and the British Prime Minister, as the Deputy is probably aware. It is a matter which is developing at EU level and I would be glad to update the Deputy as it progresses.
Mrs. Owen Mrs. Owen
Mrs. Owen: There is a group here who are still concerned that they will lose their rights.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: I acknowledge that. The issue, like the Bill, is complex and there are arguments for and against, as my predecessor is aware.
The question of the ownership of works produced by employee journalists in the course of their employment by newspapers was raised by Deputies Higgins, Stanton and others and reference was made to Mr. John Pilger, a writer whom I respect, in particular for what he has written about Cambodia and other human rights issues. I suspect Mr. Pilger would be covered on the basis that he is a freelance journalist. As the Deputy will be aware, this section does not deal with freelance journalists because they would have contracts with their employers whereas it does deal with employee journalists. I would suggest also that the right of subsequent use, which I have provided for in the section, would not muzzle somebody of Mr. Pilger's calibre.
Under the 1963 Act, newspapers own copyright in such work only to the extent that it applied to its inclusion in a newspaper. The other share, so to speak, of the copyright is allocated to the employee journalist. In the course of the extensive consultation leading to the publication of the Bill, I gave careful consideration to strong representations of the National Newspapers of Ireland in this matter and concluded that there was no justification in maintaining this split copyright situation which applies in no other field of employment – Deputy Owen referred to that. However, in assigning the full copyright interest to the newspaper employer, I consider it just to retain some element of the right to exploit their work outside the newspaper context which, at the very least, can be regarded as a traditional entitlement of employee journalists. As the Deputy rightly stated, the newspaper industry is still not satisfied with this outcome but in most cases one will find that if one is trying to achieve a balance, one will not totally satisfy either side.
Mrs. Owen Mrs. Owen
Mrs. Owen: Both sides want section 23(2) removed.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: The provision proposed in the Bill should remove any reasonable doubt as to the right of newspaper proprietors to exploit works created by employees in the course of their employment. In particular, it conveys the full copyright interest to the employer-newspaper, allowing the employee-journalist to retain no more than a restricted right to use such work, which excludes their inclusion in the newspapers. In framing this provision I was aiming to strike a  proper balance between the competing rights of the parties concerned, having regard to good principles of law as well as to the realities of the position traditionally obtaining. It remains my belief that I have found the balance. I do not understand the suggestion made by the NUJ that only natural persons can hold a copyright since it is quite clear that companies, such as publishing companies, can become full owners of economic copyright interests by purchase. It would be worth Deputy Owen's while checking the Seanad record because I think the Fine Gael spokesperson there argued the case for the newspaper industry. Again that needs to be checked carefully.
Mrs. Owen Mrs. Owen
Mrs. Owen: The debate was only starting at that stage.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: Although my colleagues in the House may advise me if they think they can improve it, in my view we have reached a balance between both interests, taking account of the fact that freelance journalists have particular rights, and many of the journalists which are not here are freelance journalists, although that is beside the point.
Mrs. Owen Mrs. Owen
Mrs. Owen: Perhaps the Minister of State could check the position because the NUJ has stated that copyright in all EU states, apart from the UK, cannot be held by a legal entity and must be held by a person. The only exception to this is where companies are formed specifically to collect and distribute royalties.
Mr. T. Kitt Mr. T. Kitt
Mr. T. Kitt: I will be more than happy to return to this subject on Committee Stage.
Deputies McGuinness and O'Flynn referred to the free playing and broadcast of music in bedrooms in hotels and guesthouses. I am advised that where broadcasts of music are used in this way, the usual view taken at EU level and internationally is that this playing is done as an indirect means of obtaining commercial gain. However, there is a great deal of merit in Members' logical comments regarding the use of music in hotel and guesthouse bedrooms so I will reconsider the matter before Committee Stage.
Deputy Rabbitte referred to Government copyright. I am reviewing the term of protection applying to Government copyright and I may table amendments on Committee Stage. As regards the copyright relating to legislative materials such as Bills and Acts, I thought it better that, in the interests of clarity, this be assigned either to the Government or the Oireachtas. Under the amendment I accepted in the Seanad, it will be a matter for the Houses of the Oireachtas to decide how this copyright should be exercised. The Government, like its predecessor, currently allows free copying without payment of royalties of the legislative materials to which I  refer. In the civic interest, I am sure the Houses will wish to consider making similar arrangements when the rights in question are assigned to them. That is a matter for the Houses but I hope the current situation will continue to obtain.
Members referred to the duration of copyright and the question of fair use. Reference was also made to the effect of the implementation of the EU duration directive on Irish law, particularly in respect of bringing back into copyright works which have previously entered the public domain as a result of the extension of the term of copyright from 50 years after the death of authors to 70 years. The preferred position of the Irish authorities on the duration directive did not favour the extension of the minimum term of copyright protection to 70 years. It is, however, a reality of the EU legislative process that negotiation and compromise are required on a broad front if anything is to be achieved. It is not possible for any member state to achieve all its objectives in the course of that process. The duration directive is now part of Irish law and must be reflected in the Bill.
Deputies Rabbitte, Owen and others referred to the establishment of a copyright tribunal. We considered the possibility of establishing a dispute resolution mechanism at expert level, along the lines of a copyright tribunal, in the course of preparing the Bill. My conclusion, however, was that, given the volume of disputes in the relatively small Irish market in respect of copyright protected works and the fact that, in any event, many serious disputes are likely to require the attention of the courts, the establishment of such a body would not be justified in Irish circumstances, either on operational grounds or on the grounds of cost.
Copyright and related rights holders and the community of users of copyright protected materials should both be aware that I will continue to take an active personal interest in the ongoing interaction between the exercise of the rights of copyright rights holders and those of the users of copyright material. Should further measures in the area of dispute resolution prove proportionate and necessary on the basis of future developments I will certainly consider them. I respect the validity of Members' comments about the controller's office and the expert level of dispute resolution and the arguments they made in favour of the establishment of a copyright tribunal. We can discuss this matter further on Committee Stage.
A number of points were made by Deputies in respect of research which I will certainly consider. For now, however, I must point out that even if researchers do not mind their articles being copied freely, this is not the case for publishers of such material. Publishers are usually the owners of the economic rights relating to published articles and if the economic rights of the publishers of specialist journalists – these are often quite small – are undermined, such journals may no longer be published. I am concerned about  such a development because it would hardly be in the interest of researchers. As a number of Members stated, a balance must be established between the interests of both parties. I remind Deputies to take the rights of publishers into account when considering this section on Committee Stage.
It has been suggested that aspects of the Bill may be in breach of the proposed EU directive on copyright in the information society. I assume this refers in particular to the scope of exceptions which might be allowed by the directive, if and when it comes into force. Apart from that question, I am of the view that the Bill is in conformity which the proposed directive addresses. The important word here is “proposed”. This directive is still in a draft stage and I understand that the views of members of the European Parliament are currently being considered by a working group of the Council, on which my Department is represented.
The Government is not currently in a position to accept formulations of the draft directive which would seriously undermine exceptions to copyright, which form an important part of the essential balance that has developed in Ireland between rights holders interests and those of users of copyright material. Nor do we favour limitations on the right of member states to adapt their regimes of exceptions to meet new challenges generated by further and unforeseen developments in the information society. Nor, indeed, do we accept current formulations which include the concept of “fair compensation”. I also understand that Ireland is far from alone among member states in having difficulties on these points. Should it prove necessary to introduce further legislation to adapt our copyright law to the requirements of new EU legislation, the Government will do so promptly. We cannot and will not attempt to introduce measures tailored to the shifting requirements of a draft text particularly where the features of the text in question require further serious consideration. We already have a large agenda with which to deal but I accept that people may have concerns about future developments.
I referred to copyright collection societies in my opening contribution. There is a perception that some societies use their remit to exercise copyright rights on a collective basis on behalf of their members in a heavy-handed manner. A number of Deputies quoted instances of this happening. It must be remembered that these societies have an important function in the system of copyright protection. Without them, many rights, such as copyright interests in music and performers' rights, could not be effectively exercised since the only way for most rights holders to exercise such rights is on a collective basis through a collecting society. I referred earlier to struggling young musicians and performers and it is important that there should be a body to look after their interests.
 It is essential in this as in other areas of business that parties conduct themselves reasonably and courteously towards each other. Therefore, I appeal to all collecting societies to persevere in what is, in general, their reasonable, courteous and business like approach to the conduct of their operations, which must be conducive to the efficient and effective achievement of their objectives. One area of the relationship between collecting societies and users of copyright material which can cause difficulties relates to the problem often experienced by the latter group in obtaining information on the former. It is for this reason that I propose, through the Bill, to introduce registration schemes for licensing bodies dealing with copyright performers' property rights and database rights. These registers, which will be kept by the Controller of Patents, Design and Trademarks, will provide users of copyright materials and the public at large with easy access to basic information on the registered societies, including the names of their offices, the classes of rights holders they represent and the scale of charges they apply.
It has been suggested that registration of collecting societies be made compulsory. I could not accept that suggestion because it would amount to a formal precondition to the exercise of copyright rights and such formalities are not permitted under international law. I am advised, however, that collecting societies that have been in contact with the Department in respect of this matter have generally accepted the value of the proposed registration system in improving public knowledge of copyright rights in general and public appreciation of the role and value of the societies in particular. I am confident, therefore, that, while voluntary, the new registers will attract a comprehensive range of collecting societies to register and will be successful in their intended purpose of informing the public.
Deputy Rabbitte referred to the copyright protection of software and software patenting and he put forward an argument about copying versus reproduction. Protecting computer software has been the subject of considerable debate recently. It was touched on in the Seanad and it is a debate I follow with interest. It is, however, important to recognise that, as the law now stands, copyright is the normal basis which protects intellectual property rights in computer programmes. This is underscored by the EU computer programme directive and in international law by the World Intellectual Property Organisation Copyright Treaty of December 1996. Both of these instruments require that computer programmes be protected under copyright as literary works in accordance with article 2 of the Berne Convention on Copyright and we are obliged to give effect to the provisions of these instruments in Irish law.
I do not agree that copyright is an inappropriate means of protecting intellectual property interests in computer programmes. Computer programmes are normally written in languages  which, while specialist, are none the less literary in the sense that they can be written in a form immediately comprehensible to an informed reader. To protect electronic representations of computer programmes is no more unreasonable or illogical than protecting electronic representations of any other class of copyright work. Protection of this sort is secured by this Bill because without it copyright protection in the age of digital storage and communication would be seriously undermined.
More important is that copyright offers substantial advantages as a means of protecting software. It can protect computer programmes without the need for the elaborate formalities associated with patenting and this is important in view of the rapid evolution characteristic of computer programmes. As regards open source programming, it is a matter for the rights holders whether they want to assert their rights. They must have that option.
Deputy Rabbitte asked about the proceedings against Ireland under article 169 of the EC treaty. A number of such actions were commenced. Judgment against Ireland was recently delivered in the first of these actions with costs but not damages. The other actions are proceeding. The European Commission has advised that such actions, once commenced, must follow their course. It would be fair to say that the actions against Ireland have not been rapidly pressed. A failure to transpose the directives by the enactment of this Bill in the near future, however, will undoubtedly encourage the Commission and the European Court of Justice to take a harsher view.
The question of whether there is a need to define the Internet for the purpose of this Bill has been raised. I have carefully considered the matter and for the time being this would be neither necessary nor desirable. Deputies will note that the reference to the term “Internet” in the context of the ‘making available' right is an including reference. The ‘making available' right does not depend on a definition of any particular means of making a work available to the public. There is also the practical difficulty that there is not an agreed definition of the Internet. Attempts to define it could run to several pages. In this context it would appear safer and more practical to rely on the self-defining character of the Internet and on commonsense than to attempt a legal definition. Having said that, I accept that it may become necessary to settle on a legal definition, not so much of the Internet, but of electronic communications networks in general for copyright purposes in the longer term.
This is a complex question. Different networks with different levels of access may raise different copyright issues through their operation. For example, the copyright consequences of carrying material on a network internal to a library or group of libraries may be different from the consequences of carriage on the open Internet. This matter is being examined by officials in the con text of current negotiations on the proposed EU directive on copyright and the information society. I will keep a close eye on the deliberations and if they suggest a need for a more precise definition of electronic networks for copyright purposes, the House can be sure that I will act accordingly.
Deputy Owen raised the matter of belated realisation. The Department has been carrying out consultative work with interest groups for four years. I published a draft Bill on 1 July. A large volume of new submissions was then considered by the Department. Interests such as the Business Software Association, the newspaper industry and the music industry were out of the traps quickly in making submissions. Others have come later to the debate but that does not mean they will be treated any differently. If people put forward sensible proposals they will be considered. The submissions were examined and, as a result, the Bill has been changed along the way – modestly in some areas and more comprehensively in others. I will look at all submissions. That is why the Bill has taken so long.
I thank all Deputies for their co-operation today and look forward to close scrutiny of the Bill on Committee Stage.
Question put and agreed to.
Dáil Éireann 510 Copyright and Related Rights Bill, 1999 [ Seanad ] : Second Stage.