Seanad Éireann - Volume 105 - 13 September, 1984

Copyright (Amendment) Bill, 1984: Committee Stage.

NEW SECTION

Government amendment No. 1:

In page 2, before section 1, to insert the following section—

1. —Section 14 of the Copyright Act, 1963, is hereby amended by the insertion [89] after subsection (7) of the following subsection:

‘(7A) The making of an object of any description which is in three dimensions shall not be taken to constitute an infringement of the copyright in an artistic work in two dimensions (other than such a work relating to a work of architecture) if—

(a) any of the features following, that is to say, shape, configuration and pattern that appear in the work and are applied to the object are wholly or substantially functional, and

(b) the object is one which is or has been manufactured by the owner of the copyright or by any person authorised by such owner and is or has been commercially available in numbers in excess of 50.’.”.

Minister of State at the Department of Industry, Trade, Commerce and Tourism (Mr. E. Collins): The amendment adds a further item to the categories of activity which are deemed not to constitute an infringement of copyright. The purpose of the amendment is to permit the manufacture of functional objects by persons or firms other than the owner of the copyright in the original drawings of the objects where the copyright owner himself is already making these objects in quantities in excess of 50. Up to now a person who owned the copyright in original drawings of functional objects could prevent anybody else from manufacturing those objects without permission, that is, permission normally being subject to payment of royalty, and it is considered that such protection is too extensive and fosters anti-competitive situations in the supply of such purely functional objects as components, spare parts, and so on.

The amendment will not change the position whereby copyright will continue to subsist in original drawings of functional objects to the extent that anyone who photocopies the drawings will be in breach of that copyright. Furthermore, anyone who manufactured the [90] articles depicted in the drawings would also be in breach of copyright unless the copyright owner were also making such articles himself. The effect of the amendment proposed should be to encourage industrial development which would otherwise be hindered by the restrictive effect of the copyright protection as it now stands. The amendment will also bring Irish copyright law in this respect more into line with the law in other countries.

Mr. Howard: This is a new provision. From what the Minister has said it would appear to be liberalising the copyright situation where industrial development is concerned. I have a feeling that it will have the other effect. Are there examples the Minister could quote illustrating the fact that we are going in the direction of liberalising the situation?

Mr. E. Collins: We are bringing our law more into line with the law in other countries. I feel that the amendment is beneficial in that respect. It will help our industrial development.

Mr. Durcan: I have one general question on the amendment but it also relates to the Bill generally. Why in general does the State regard itself as having a duty to protect copyright when this is a property right subsisting? The owner of the copyright surely has ordinary civil remedies to see to the protection of the copyright interest vesting. Recent examples of actions brought frequently by a particular body in this country have shown the power of civil action. Why is it necessary for the State to criminalise certain breaches of copyright? This legislation would appear to further that ideal.

Mr. E. Collins: History has shown that the State has always taken an interest in protecting those who invent things or who originate drawings. That obligation is on the State to protect inventors and copyrights in original works of art. In this case we are not offering further protection but, in fact, we are taking away certain rights in regard to functional objects. We are liberalising the situation.

[91] Mr. Durcan: In view of the fact that many civil actions have been instituted in recent years by one particular concern in this country, has the Minister of State any statistics available indicating the number of prosecutions instituted under the grounding Act?

Mr. E. Collins: I do not have the number of prosecutions. The cases before the courts are being brought primarily under Acts of Parliament. This is a further amendment to the 1963 Act.

Mr. Lynch: As I said at the outset, the Bill is a most welcome one for its main objective which is to stamp out the illegal screening of video films which has risen to an alarming degree in recent times. If steps are not taken now to stop this illegal traffic, the floodgates will be opened for the screening of video nasties and for the introduction of pornographic material if it is not already here. We must also stamp out this very lucrative black market business and take measures to deal with this section of the black economy. While the Minister, as a result of the Second Stage debate, decided to put down certain amendments to sections, an extra protection is being afforded to a particular organisation which does not have its roots in this country and exports most of the money it makes. The amendments are, to a certain degree, an infringement on what certain business people and ordinary people will see as their normal rights. I have tabled an amendment which will come up for discussion later on today and I will explain what I mean by that.

Mr. Howard: Will the Minister clarify this? This Bill started out with one specific purpose, which was to deal with the situation in regard to video pirates. New elements have come into this and I expressed reservations about some of them on the last occasion which the Minister has responded to. I appreciate that. There are new elements being brought into it. The Minister said that this amendment deals with copyright in [92] industrial activity and he has referred to drawings. Could the Minister clarify if the amendment has effect in relation to the drawings of a particular article either being manufactured or proposed to be manufactured or does it extend to the manufactured article?

Mr. E. Collins: I said quite clearly that the amendment will not change the position whereby copyright will continue to subsist in original drawings of functional objects to the extent that anyone who photocopies the drawings would be in breach of the copyright. I made it quite clear that the copyright was being maintained in that regard.

Mr. Howard: What is the Minister achieving?

Mr. E. Collins: We are liberalising the position in respect of three dimensional objects where our law seems to be somewhat out of line with laws in other countries. The effect of this amendment is primarily industrial and it does not affect the copyright of works of art.

Mr. Howard: I understand that.

Amendment agreed to.

An Cathaoirleach: Amendments Nos. 2 and 4 are related and may be discussed together.

Government amendment No. 2:

In page 2, line 8, before “(5).” to insert “(4),”.

Mr. E. Collins: This amendment adds subsection (4) of section 27 of the basic Act to the list of subsections that are being amended by the Bill. The Minister agreed during the Fourth and Final Stages in the Dáil to consider the amendment of subsection (4) of section 27. The new subsection (4) is now amendment No. 4. I will now address myself to amendment No. 4, with the permission of the Chair.

This subsection is a replacement of sub-section (4) of section 27 of the basic Act. In the existing subsection (4) of section [93] 27 the District Court is empowered to authorise a member of the Garda Síochána to seize without warrant and bring before the court infringing copies of copyright works which are being hawked, carried about, sold or offered for sale. When the court is satisfied by evidence that there is reasonable grounds for believing that these offences are being committed on proof that the copies are infringing copies, the court may order their destruction or that they be otherwise dealt with as the court sees fit. During the Report and Final Stages in the Dáil it was represented to the Minister that the wording of the existing subsection (4) may not allow for the possibility of seizure where infringing copies are being hired as opposed to sold by mobile operators. In order to close off any such loophole and to ensure that the subsection catches all the trading possibilities open to mobile operators — that is selling, hiring, exhibiting or exposing for sale or hire — I have put forward a new replacement subsection.

Amendment agreed to.

Mr. Howard: I want to raise a query in relation to section 27(8). May I raise the query now?

An Cathaoirleach: The Senator may talk about the section when the amendments are disposed of.

Mr. E. Collins: The main amendment to subsection (4) is the addition of the words “let for hire or offered or exposed for hire”. There is a slight addition to the position which pertained on the Second Stage.

An Cathaoirleach: Amendments Nos. 3 and 5 can be discussed together.

Government amendment No. 3:

In page 2, lines 10 and 11, to delete “after the commencement of this section” and to substitute “after the commencement of the Copyright (Amendment) Act, 1984,”.

[94] Mr. E. Collins: I have been advised that it is necessary to delete the words “after the commencement of the section,” at both occurrences and to substitute the words “after the commencement of the Copyright (Amendment) Act, 1984”. This matter has come to our attention as being needed.

The reason for this amendment is simple. Section 1 of the Bill introduces a number of amending sub-sections into section 27 of the basic Act. Subsections (1) and (8) contain new offences which were not in the basic Act. In order to avoid the possibility of retrospective conviction for the new offences, which would be an unconstitutional situation, it is necessary to provide that the new offences will operate and be punishable from the date of entry into force of the present Bill. This is the purpose of the amendment now proposed. It does not alter the position in any way in relation to those offences which were created by the basic Act.

Amendment agreed to.

An Cathaoirleach: Amendment No. 4 has been discussed.

Government amendment No. 4:

In page 2, between lines 20 and 21, to insert the following subsection:

“(4) The District Court, upon the application of the owner of the copyright in any work, may act as follows: If satisfied by evidence that there is reasonable ground for believing that infringing copies of the work are being hawked, carried about, sold or offered or exposed for sale, let for hire or offered or exposed for hire, may by order authorise a member of the Garda Síochána to seize the copies without warrant and to bring them before the court, and the court, on proof that the copies are infringing copies, may order them to be destroyed, or to be delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.”.

Amendment agreed to.

Government amendment No. 5:

[95] In page 2, line 32, to delete “after the commencement of this section” and to substitute “after the commencement of the Copyright (Amendment) Act, 1984,”.

Amendment agreed to.

An Cathaoirleach: Amendment No. 6 may be discussed with amendment No. 7 in the name of Senator Lynch. It was received late but I decided to accept it.

Government amendment No. 6:

In page 3, between lines 19 and 20, to insert the following new subsection:

“(10A) Notwithstanding anything contained in subsection (10) of this section, where any person causes a work specified in subsection (8) of this section to be performed in public in contravention of the said subsection (8) by means of a television broadcast or a sound broadcast, he shall, in lieu of any penalty specified in the said subsection (10), be liable on summary conviction to a fine not exceeding £100.”.

Mr. E. Collins: The effect of the amendment is to maintain the old fine of £100 prescribed in the Copyright Act, 1963, in respect of the offence of causing a copyright work to be performed in public where this comes about by somebody allowing television and/or radio broadcasts to be heard and seen in public without having the necessary licence to do so. The amendment also has the effect of abolishing the alternative penalty of a prison sentence for the same offence in respect of repeated incidents. Under the 1963 Act the list of offences, including the one of allowing a radio or television broadcast to be seen in public, were all subject to a common monetary penalty of £100 for the first offence with the alternative of a prison sentence for a second or subsequent offence.

It will be recalled that during the course of the debate in the Seanad on the Second Stage of the Bill, considerable concern was expressed that the same criminal penalties under the Bill were being applied to the relatively “harmless” offence of allowing a television or radio [96] broadcast to be heard and seen in public, e.g., in a lounge bar, as the more blatant offence of pirating of copyright works. Certain Senators, in particular Senator Howard, perceived the primary objective of the Bill as increasing penalties for the more serious offences, e.g., illicit copying, dealing in infringing video tapes, etc.

Therefore, to include in this serious category the occasional playing of a radio or showing of a television programme in a public house and to make the latter the subject of the same criminal penalties was, in their view, inequitable. Furthermore it carried the implication that the licensed trader concerned was something of a criminal.

It should be remembered, of course, that there is nothing wrong with causing a radio or television broadcast to be heard in a public place like a lounge if the proprietor secures the necessary licence to satisfy the requirements of copyright. Licensing for such purposes is the business of the Performing Right Society but the licensed trade do not, it will be recalled, enjoy a good relationship with the PRS because of having to pay royalties under the licences granted by that body.

Since the Second Stage of the Bill in the Seanad, the Minister met a deputation from the licensed trade, accompanied by Senator Howard, at which there was some discussion of the above-mentioned issues and the Minister agreed to consider introducing an amendment to the Bill in response to the representations.

The effect of the amendment which has been prepared goes a long way towards accommodating the concerns of the licensed trade. With this amendment, if somebody, like a publican, were to cause a radio or television broadcast to be heard and seen by the public without having acquired the necessary licence to satisfy copyright requirements, that person would be subject to the same fine for this offence as was prescribed in the 1963 Act — this fine is £100. In addition, the optional penalty of six months imprisonment which is contained in the 1963 Act in respect of a second or subsequent conviction is being removed. It would be out [97] of keeping with the whole philosophy of copyright protection if a total exemption from breach of copyright were provided in respect of the public performance of copyright works through the medium of a radio or television broadcast.

In regard to amendment No. 7, I am not disposed to accept the amendment in so far as Senator Lynch's amendment wishes to have the position, in the case of television or sound broadcasts made in public, that the person should not be guilty of any offence under this Act. That would not be in keeping with the philosophy of the Copyright Act.

Mr. Lynch: My apologies for the late submission of this amendment. I only got the Bill yesterday. When I looked at the Bill I felt that it was more or less off the rails. One can look at a television in an ordinary public house. The average business hours in a public house are two hours at the maximum. The staff are paid for doing almost nothing all day. A television or radio is no longer an asset in a public house. The big attractions in public houses now are pool tables and video machines. If the Minister would look into these he would collect a lot of revenue for the State. Furthermore, I am not satisfied that in the original Bill copyright referred to cases where an extra profit was being made through the use of the particular work. Television and radio are no longer an incentive. They exist and a high licence fee is charged to use them. The information I have is that RTE are paying a royalty of something in the region of £495,000 per annum to the Performing Right Society. Publicans, as I said before, pay their licence fee and to impose a copyright charge on them in effect would be legislating for a double charge to be made. I cannot see how the Minister's amendment to this section can be justified.

The Minister, in his amendment, accepts that there is grave need to change the original wording by reducing the amount from £1,000 to £100. The Minister should have gone the whole way and deleted that wording completely. It is wrong in principle. I would like the Minister [98] to give me the definition of “a sound broadcast”. Here we could go into a grey area. To me sound broadcasting includes any one of us on a Dáil election campaign engaging in the new craze in modern times — Deputy Bruton in my own constituency is a good hand at it, I operate the system myself — of rigging up amplifiers on cars and playing music from a tape as one goes around the country. That could be termed “sound broadcasting”.

Mr. E. Collins: I am sure that if Senator Lynch sought copyright for his speeches it would be forthcoming. He will be fully protected.

Mr. Lynch: It could be termed “sound broadcasting.” I had a query on the sub-section and, as was mentioned by Senator Howard, it can be referred to later.

Mr. E. Collins: There is one point I wish to clear up on the question of charging licence fees by the State for wirelesses. There seems to be some confusion about this in that some people believe that the payment of a licence fee for the holding of a television or a radio set is in some way the payment of copyright royalties. That is not so. The payment of a licence for radio or television is a payment to the State for the right to have a radio or television in one's house. It has nothing to do with any royalty under the Copyright Act. I want to make that point clear.

Mr. Howard: I should like to refer to two things. First, I recognise the move by the Minister in response to the debate we had on Second Stage. He accepts that permitting a broadcast by means of radio or television should not and could not be equated as it were on the same level of offence with that of pirating of video tapes. I recognise that the change is substantial in that the fine has been reduced from £1,000 to £100. That is a recognition and I appreciate that. I want to put it to the Minister at the same time that there are merits in the amendment Senator Lynch put before us in the sense that the Minister has practically gone all the way in [99] recognising that the presence of a radio and a television in a licensed premises is not as big an attraction of business as it was perhaps 20 years ago when this Act came into being. The Minister has gone now almost to the brink and it would be as well, in the interests of fair play and justice, to toss what is left here over the edge and get finished with it. We have made progress here. There was substantial progress subsequent to the Second Stage discussion here in that the senior Minister directed that the appeals machinery should operate. For that I want to express my appreciation. It was almost impossible to get it done up to now but the clearance has been given. The net effect of these two advances made by the Minister since we had the Second Stage discussion can be largely related to the situation as pertaining in licensed premises. Therefore, I feel that to some degree I was responsible for putting that emphasis on the licensed premises, as it were. The making public of that aspect has meant that other very deserving situations have been ignored. For that reason I want to revert either now or later to what I feel are injustices that will be created and continue in other areas.

The Minister's amendment could be extended to include the situation I am concerned about. I want to clarify one other matter. There is a misunderstanding about this question of royalties and payments to organisations such as the Performing Right Society. People pay their licence fee, as was mentioned by the Minister, to RTE and we accept that, but that is an entirely separate matter. In addition to this the Performing Right Society will seek a royalty or a licence fee despite the fact that they have already reached an agreement with RTE by which RTE pay them approximately £500,000 to discharge any obligation on the part of RTE in relation to the copyright content of programmes broadcast by them. That is adequate settlement by the broadcasting authority for the copyright content of material that can be broadcast by them. The actions of the organisation representing performers in [100] seeking a second payment on top of that for copyright is not justified. I also want to make the point that a television is no longer an attraction in bringing in business. In fact, people leave their homes to get away from it and on that basis there has been a misunderstanding.

I am not saying that because we pay a licence fee to RTE our obligation to everybody is completed. What I am saying is that once RTE pays the organisations protecting or representing the owners of copyright for the right to broadcast their material that is in full settlement of anything that may emerge from that operation irrespective of where it is picked up and received unless, as is stated in section 17 or 19 of the original Act, there is a clear statement to the effect that if a charge is made for the privilege of listening to or seeing a particular programme then there is a gain and the broadcast is being used commercially and there is a return from it. But in the normal course of events if I go into a pub to see something I can see in my own sittingroom I should not be expected to pay a second charge or a second licence fee for that privelege.

I wish to raise another point with the Minister, and I am raising it at this stage because I feel that, if the Minister is to consider what I am suggesting to him, the amendment now before us would possibly be the appropriate machinery or an appropriate means of dealing with the difficulties that I see. While we all accept the original purpose of the Bill was to deal with video pirates we have got this continuous process of extending it where other things have been brought into it. Subsection (8) of section 27 is causing the difficulty here. While we felt it was all relating to pubs and licensed premises it was not but that situation has been dealt with to some extent. I give the following examples. If, for example, the old folk, regardless of what part of the country they come from, organise, or somebody organises on their behalf, a particular event or party and if by chance there is background music played at that event we are criminalising these organisers to the same extent that we are criminalising the video pirates, because they are liable [101] to get six months in jail or £1,000 fine unless they obtain the prior permission of the organisation representing the owners of copyright. The same thing will apply to youth clubs. Even in a camp or anything else where there is background music, if we accept subsection (8) of section 27 we are saying that is an offence that merits a penalty of £1,000 or six months in jail. If the ICA have a cake sale or another event for a local charity, again if there is background music during that event the same situation applies. It applies equally in relation to an organisation such as Macra na Feirme.

An Cathaoirleach: Will the Senator please stay with the amendment?

Mr. Howard: I am inviting the Minister to consider rectifying the situation by extending the amendment. If the Chair thinks that I should leave it until later I will do so but I felt that there was an opportunity for the Minister here once he was aware of the gravity of the situation.

An Cathaoirleach: I said I would allow you to raise it at the end of the discussion on the amendment.

Mr. Howard: In relation to both amendments which we have before us at this stage, I simply want to repeat what I said earlier. I encourage the Minister to take that further step. There is no valid reason at this stage for hesitating. Some 20 years ago the presence of some of this equipment in a licensed premises was an incentive to business. Perhaps we all broke the law on the first Sunday in September because these places were full with people looking at the all-Ireland finals. That is no longer the case because there is a TV and a radio in every house in the country and what is an offence in my lounge or in Senator Lynch's lounge is not an offence next door even though it is the same programme and comes from the same machine. For that reason there is not a gain from having a radio or television set in a premises. The Minister recognises, and I compliment him on it, that there is no way that this particular offence should be lumped in with the [102] major problem of video pirates. I encourage him to look seriously at taking that step and going the whole hog.

Mr. E. Collins: I shall confine myself to the Committee Stage aspects of the contribution. I wish to state quite clearly that I am here to protect the ownership of copyright in literary, dramatic, musical, artistic and other works which are entitled to be protected. That has been the position of government through the years and I do not make any apology for it. In fact, without such protection we are offering our artists, inventors and song-writers very little opportunity of getting a livelihood. That must be said. It is going back to the sixth century where Diarmuid said: “Le gach leabhar a leabhrán”. That has been the principle that has pertained in copyright law. I have amended the position regarding fines for the playing of radios and televisions in public places and I have removed the criminality aspect of it by removing the six months jail sentence. I have also maintained the £100 fine rather than raising it to £1,000.

I was mildly amused that great play was made on this matter on Second Stage whereas it was represented today that television and radios are not really important in pubs anyway. I do not understand how it was a major issue on Second Stage and today it is not really an issue at all. However, that having been said, we have amended the Bill upon representation by the Vintners' Association to retain the fine at £100 and we have got rid of the criminality aspect by eliminating the jail sentence. I am not disposed to go over the cliff. I think it is proper that we control the situation, that the copyright is transparently seen to be protected. I am afraid I cannot agree to the amendment in Senator Lynch's name or the suggestion by Senator Howard that I go all the way and throw myself over the cliff on this matter. I will stay on the brink, nice and gently.

Senator Howard referred to subsection (5). I think there is some misunderstanding about the operation of this subsection. My understanding of it is that with regard to price increases it is not the responsibility of the Controller of Industrial [103] and Commercial Property but is the responsibility of the National Prices Commission. If it is a matter about the responsibility laid down in Part V per se, he is and has acted within his remit. So I would not like any misconception to leave this House that Part V of the 1963 Act was not operating. I am talking about Part V of the 1963 Act that has operated.

The question was raised that RTE pay fees to the Performing Right Society and therefore they are a duplication of royalties being paid by pubs or at fetes or field days. That is not so. Again it is on the basis of le gach leabhar a leabhrán. You are going to protect the person who has been protected by copyright and by royalty under the Copyright Act for a work of art and if it is performed on a number of occasions its popularity reflects itself in greater royalties to the originator of the piece. That is the way of life and that is the principle of the copyright legislation as I understand it.

I felt both on Second Stage and here today that the question of the Performing Right Society and their standing was brought up with the inference that I am protecting the Performing Right Society. That is not so. The Performing Right Society are a body who work on behalf of those copyright holders. They operate under Acts and within the jurisdiction of courts, not under my direction, not within my jurisdiction. It is a simple legal procedure which they use and they can be challenged in court as easily as they can go to court. I did not establish them. They are a society who operate before the courts of law and can defend their actions before the courts of law and if people wish to defend themselves against any actions of the Performing Right Society they have every right to do so before the courts of law. The field day, youth clubs, the ICA ladies having their day out still fall within the same principle, le gach leabhar a leabhrán. That principle has not changed. I am not disposed to change it.

Mr. Lynch: I assure the Minister that I respect fully his wish to protect the holders of copyright and we support him [104] in that. My concern, and I safely say that of Senator Howard in this, is that we have a fair amount of experience in the licensed trade, for whom we have an obligation to speak in this House and I who have had experience in the musical world would like to see it given a fair balance.

While the Minister is right in saying that the individual publican can appeal to the court, the method of assessment as far as the publicans are concerned cannot be questioned. Your annual premium is gauged by the amount of space you have and the number of television sets, radios, tape-recorders etc. on your premises. By allowing this to go through we will be giving a free hand to this organisation. I have nothing against this organisation as an organisation if I can believe that they were fully entitled to everything they are getting. I know of a case where this organisation visited a premises and issued demands to publicans who have sessions of Irish traditional music at night in their pubs and subsequently brought them to court. That happened to a noted county councillor and he has shelved the accordion. He will not allow any Irish music to be played in his house. It is a poor state of affairs that we have legislation that allows that to happen. I am sure the Minister and every Member of this House would not wish to see any legislation in operation which would give rise even to the possibility of that happening, but it has happened and is happening and will continue to happen. Most of the premises I refer to put on sessions of music and musicians are becoming more demanding. They look for a few pints, and there is no extra charge on drink and no admission charge. Business is very bad when an alternative attraction to television is necessary.

Referring to subsection (8), I could elaborate on what Senator Howard has said. The subsection states:

Any person who after the commencement of this section causes a literary, dramatic or musical work to be performed in public...

I can name a number of functions for the [105] disabled and I have played with my céilí band for at least one of these functions. Every fortnight we play for some local charity when the ICA and local organisations bring disabled people in from hospitals in our locality and they have an evening out, maybe a dance, an entertainment attended by the parish priest. The old folks have a party. Many of these functions are filmed on video and shown in the homes, at later functions, and after bingo and sometimes before. I have been a member of a brass and reed band since I was a little boy. We play at the local shows and football matches. Under this section such performances are now in contravention of the Bill.

Mr. E. Collins: We could go on all day at this. I want to make it as simple as possible. If the Performing Right Society take a case to court and if that case is not challenged and defended in the courts the copyright in the material is taken as being admitted because it was not challenged. If, as Senator Lynch has said, you have a seisiún of traditional music which is not subject to copyright then there is no need to pay any licence fee to the Performing Right Society or anybody else and if that is challenged in court the thing to do is to go to court, defend the action and win the case, and have done with the situation which you claim to be adversely pertaining and existing. Either there is copyright pertaining to works of art or music or there is not. If there is a dispute about it and the Performing Right Society bring someone to court, defend the situation if it is defensible. If it is not defensible, then copyright royalty or a fee is due to the Performing Right Society who merely act on behalf of copyright holders. It is a matter for the court. It is not a matter for the Minister. It is a matter for procedures of the court to be used. If one sees they are being wrongly brought to court then the case should be defended. If it is not defended the admission of liability is there.

[106] Mr. Lynch: Surely the Minister's reply could justify my argument that, in the first instance, the Performing Right Society have no authority to bring such people to court and should be liable to counter action. People do not actually go into court every year.

Mr. E. Collins: Our courts of law, happily, are open to anybody. My understanding of the matter is that the Performing Right Society are retained by copyright holders to collect their copyright royalties by way of their issuing licences. They have been recognised by courts. They have taken cases to court. They have won cases and they may have lost cases. They are there protecting copyright. I did not establish them. They are a society established by copyright holders, nothing more and nothing less. They have no rights with my Department, or with me as Minister. They are simply acting under the normal procedure of law existing in this country on behalf of a body of copyright holders.

Mr. Howard: I accept that we could kick this around for quite some time. I want to go back to an observation made by the Minister that on the last occasion a lot of emphasis was placed on radio and television and that it seems to be the other way around now. I do not accept that.

I put the same emphasis on the charges as I did the last day. Perhaps a misunderstanding arose between the Minister and myself on this. I have been assured by the Cathaoirleach that I will get an opportunity to speak later.

An Cathaoirleach: If amendment No. 6 is agreed, then amendment No. 7 must fall.

Mr. Lynch: It is not agreed.

Amendment put.

The Committee divided: Tá, 19; Níl, 13.

Belton, Luke.

Bulbulia, Katharine.

Burke, Ulick.

[107]Dooge, James C.I.

Durcan, Patrick.

Harte, John.

Higgins, Jim.

Higgins, Michael D.

Howlin, Brendan.

Kelleher, Peter.

Connor, John.

Daly, Jack.

Deenihan, Jimmy.

[108]McAuliffe-Ennis, Helena.

McDonald, Charlie.

McMahon, Larry.

O'Brien, Andy.

O'Leary, Seán.

Quealy, Michael A.

Níl

de Brún, Séamus.

Ellis, John.

Fitzsimons, Jack.

Hanafin, Des.

Hillery, Brian.

Honan, Tras.

Kiely, Rory.

Lanigan, Mick.

Lynch, Michael.

Mullooly, Brian.

O'Toole, Martin J.

Ryan, William.

Smith, Michael.

Tellers: Tá, Senators Belton and Harte; Níl, Senators W. Ryan and de Brún.

Amendment declared carried.

Amendment No. 7 not moved.

Question proposed: “That section 1, as amended, stand part of the Bill”.

Mr. E. Collins: I would be quite happy to have amendment No. 6 not carried and the original position of a fine of £1,000 and six months in jail, if Senators wish it.

Mr. Howard: As I said earlier, it is a substantial step in the right direction.

Mr. E. Collins: The Senator should have supported it.

Mr. Howard: We are back to an aspect that I wanted to raise with the Minister.

Mr. E. Collins: What stage are we at?

An Leas-Chathaoirleach: I understand, Minister, that section 1 is amended. Senator Howard got permission earlier to make some point at this stage.

Mr. Howard: I understand the amendment is made and that I am speaking now on the new section. I am speaking with particular reference to subsection (8). The point I am making is that the original intention behind the Bill was to deal with people who were making illegal videos and marketing them. We will not have succeeded if subsection (8) stands as it is without excluding from it certain categories of people who do useful community and voluntary work in their areas. We are leaving them in the position that they will be given the same penalties as the video pirates. I gave the example of a group organising an old folks party. If background music was played there without the organisers having a licence or paying a royalty to one of these bodies representing the copyright holders they would not alone be liable under civil law but under the criminal law in this case to fines totalling up to a maximum of £1,000 or six months in jail.

I gave the example of youth clubs and of Marca na Feirme clubs organising a field day or other such event. I gave the example of the ICA organising a cake sale or something like that and having background music. Many of these clubs perform a very worth while charitable and social function in their area. It is by way of oversight that they are categorised as being guilty of offences that merit the same penalty as video pirates.

What we are dealing with here are people who engage in charitable social events, voluntary work of the most praise-worthy kind. It is wrong of us and we would be seriously neglecting our duty here if we were to say that these people, perhaps by way of oversight, should be put in the same category as video pirates and other back street operators who are deservedly in that bracket. It would be unjust if we were to put these people, [109] who are outstanding leaders in many cases and doing tremendous voluntary work, in the same bracket as these other objectionable people which this measure was first introduced to deal with. There is need for segregation here. There is a need for us to be positive. I invite the Minister to consider this. There is a need for us to do something similar to what was done in relation to the last amendment which the Minister dealt with.

It is necessary, if I might use this term, to segregate the good apples, and indeed the excellent apples in many cases, from the fairly rotten apples in this batch. In fairness and in recognition of the work that these organisations and these community leaders do in their area, that should be recognised. We would be seriously neglecting our obligation to them and our duty as legislators if we did not make that point. I referred to that on Second Stage but I put the emphasis on the other thing and I am sure the Minister understood my reason for it, as I explained earlier.

There is an urgent need and it falls on all of us to exclude these people who perform that valuable service and valuable work from the all embracing effect of subsection (8) the object of which was to catch one category of people. I have given all these examples. Some people might say they are extreme.

Perhaps I could give a further example. If the Taoiseach visits the Minister's constitutency, it is a useful advance publicity thing to put out a van with a loud speaker to play music. This subsection puts you in with the video pirates. That is the effect of this. Your offence is in the same category. If Senator Lynch and the Leas-Chathaoirleach have the leader of their party visiting their towns and they send around a van with broadcasting equipment, they are precisely in the same bracket. How can we seriously suggest that any of the personalities I have referred to could be cateogrised as deserving the same kind of treatment as video pirates? That is the risk and the danger there is in allowing the subsection to stand with its all embracing effect. I invite the Minister to look at the situation [110] between now and Report Stage and I suggest to him that it is not beyond the capacity of the Minister and his advisers to devise a means by which we will recognise the work that these community leaders do and segregate them. We should pay them that tribute of segregating them from the video pirates and the back street gangsters with whom they are equally bracketed at the moment.

Mr. Lynch: I referred to this subsection earlier on in the discussion. That is why I felt it necessary today to put down an amendment concerning this subsection. When the Bill was being drafted enough thought was not given to the possible consequences. I believe that if the sections were better teased out and more thought and consideration given to all aspects of the original Bill we would not be faced with the problems we have today with the Performing Right Society. Under this subsection, any person or persons who would be responsible for an organisation who would cause literary or dramatic work to be performed would be categorised as being guilty of an offence.

I referred earlier to local brass bands. All the music the brass bands play, and most accordeon bands, is copyright. Many organisations give up their time to local community development and produce dramatic works. They play an active role in the social life and activities of local communities and at national level. Take, for instance, the Artane Boys' Band in Croke Park every Sunday at football and hurling matches. If this subsection is not amended to categorise these people in such a manner that they will not be deemed as acting in a criminal manner under the section of the Bill, if action is not taken or something done and if the Bill goes through this House, though it may not happen to any great degree it is the intention of the Bill that action would have to be taken and should be taken. As I said earlier on, when we would be going on our trips around the country, around our constitutencies, playing our tape recorders or bits of music and making our dramatic speeches we would be liable for prosecution under the Act. I hope that this subsection will be looked [111] at in greater depth and proper categorisation given.

Mr. E. Collins: While I understand the points made by Senators, the position they speak of has existed since the 1963 Act. I am not bringing about a situation that puts the people referred to by Senator Howard and Senator Lynch into a new category. I am changing it in one respect: the obligation was on them since 1963 to pay whatever fees they legally owed. I am not disposed to change that position in this amending legislation.

Mr. Howard: I am asking the Minister to segregate, as had already been done in relation to the last amendment, the type of people I have talked about and take them away from being lumped, as it were, in the same scale of penalties — which, of course, implies the same off-ence—which I feel is totally undeserved. Take them out of that category, segregate them and, as it were, eliminate them, which I do not think the Minister is prepared to do. I would prefer to see them relieved because of the fact that they do charitable and social work. They do not get any kind of reward for themselves. I urge that they be relieved of any offence under the section.

Failing that, then at least the fine imposed in that situation should be no more than nominal. If it had application in another category surely to goodness it should have application also in this situation. The thing I would be delighted to see the Minister do is to remove these people totally, but if he is not prepared to do that then at least the very minimum they deserve is not more than a nominal fine. How can you say to the person who devotes his time to looking after youth in a parish, or the needs of old people, who devotes countless hours giving worth while leadership in his area, that if he by an oversight on one occasion plays background music he should now be classified as a criminal to the extent of being liable to spend six months in jail or pay a £1,000 fine? No self-respecting politican of any kind can permit that to develop. [112] Therefore, I am saying that if there is to be a fine it should be a nominal one.

Mr. Lynch: I mentioned earlier that I was not sure if under the 1963 Act the works referred should have been categorised as being for financial gain, reward or return. I fully agree with Senator Howard's point. I fail to see how one could categorise each section of the community and carry out an in-depth study to find out how many different exemptions will have to be made. If the Minister at this stage cannot see his way to categorising the sections perhaps he will consider a further amendment to the section on the following lines:

(8) Any person who after the commencement of this section causes a literary dramatic or musical work to be performed in public for financial gain or reward...

Mr. O'Leary: Senator Howard is exaggerating the significance of this completely. When one enacts legislation giving the power to the Judiciary to impose a fine of £100 or £1,000 or a term of imprisonment up to six months it does not mean that in each individual hard luck case the court will choose to exercise its power in that regard. Similarly, if one commits a most trivial traffic offence in theory one renders oneself liable to imprisonment of 12 months at the discretion of the court. However, no court in its right mind would impose a penalty like that for a trivial traffic offence. The difficulty of defining what is a trivial offence and what is not a trivial offence within legislation is such that it is not possible to do so. All one can do is lay down what is an offence and what is not an offence and then allow the court the discretion from zero, from applying the Probation Act right up to £100 or £1,000, one week's imprisonment or without imprisonment and to exercise discretion in any particular case. There is no way in which any draftsman could draft an adequate piece of legislation to cover the various categories of potential offences outlined by the speakers today. We have got to be realistic in this regard and to recognise that the purpose of discretionary [113] penalties is that each case must be recognised as different by a court of law. In that regard I support the Minister. It is a perfectly reasonable thing for the Minister to do. There is no suggestion that if somebody plays music he should not have played at a local garden fete he will be sent to jail for six months. That does not happen. That is not realistic.

The alternative to that, and here I would go along with both Senators Lynch and Howard who were speaking along those lines, would be if the fines were mandatory. However, they are not mandatory fines. One does not have to be fined £100 or £1,000 as the case may be. One does not have to be sent to prison for six months. We have to trust the Judiciary to apply their own discretion in a sensible fashion. In this regard a person who breaks this law will be considered in the eyes of the law no more a criminal than a person who parks on a double yellow line. Theoretically a person who parks on a double yellow line is a criminal but in terms of his place in the community it is just considered to be a minor social irritant. As long as a person does not do it habitually the court adopts a sensible and reasonable attitude. In that respect we must be realistic and not try to make a federal issue out of something which, in my opinion, is not a federal issue.

Mr. Lynch: In effect what Senator O'Leary is suggesting is that any one of the organisations we have referred to — the children's band which parades on St. Patrick's Day or attends the local match, now, especially with the publicity this will get — know that by so doing they will be under threat of prosecution for a criminal offence. My main purpose in putting forward this argument is for the preservation and protection of children's bands, and brass and reed bands, and to give people the freedom they want to pursue whatever social activity in their community they be entitled to without fear or threat of criminal prosecution.

Mr. Howard: I have not always found myself in disagreement with Senator O'Leary but on this occasion I do for a more fundamental reason that what we [114] are talking about here. As far as I am concerned the function of the court is to implement the laws we make. The responsibility for making good law is our responsibility as legislators and ours alone. This House more so than the other House, has many detractors that never spare us. If at this stage our attitude as Members is to be: “Look, we can pass any kind of legislation, slipshod or otherwise and we can depend on the courts to rectify it”, then we deserve the worst our detractors can say about us. That is the basic division of opinion that I have with my colleague on this aspect.

It is wrong that we should say to these people — that is what we are doing — “Look, you are as big a nuisance in society, you are as big a problem in society as the video pirates and we believe that because we put you at risk to the same degree.” That is wrong. I request the Minister between now and Report Stage to consider meeting that by way of an amendment.

Mr. E. Collins: I have listened to the debate with interest. The situation with regard to being liable for a fine in court has not changed under the amending Bill since the original Act of 1963. I am not changing the position. It has been the position that occasions such as mentioned by Senators must conform to the law in relation to copyright. I am not disposed to change the position in that regard, nor am I disposed at this point to change the penalties for breaches of the Act on such occasions.

An Leas-Chathaoirleach: Is section 1, as amended, agreed to?

Mr. Howard: It is agreed on the basis that it should be open to a Member to bring forward a suitable amendment on Report Stage.

Question put and agreed to.

Section 2 agreed to.

Title agreed to.

Bill reported, with amendments.

An Leas-Chathaoirleach: When is it proposed to take Report Stage?

[115] Mr. Howard: I request that the Report Stage of the Bill not be taken until next week.

Mr. O'Leary: If a Member of the House wishes to move an amendment on Report Stage he should be given the opportunity to do so and, consequently, we should order Report Stage for this day week. That does not necessarily mean it will be taken this day week.

Mr. E. Collins: I will be abroad.

Mr. O'Leary: If we order it for next week it can be taken then as the House orders.

Mr. E. Collins: If that is the wish of the House, but I would prefer if the Bill were completed today.

Report Stage ordered for Thursday, 20 September 1984.