Copyright and Related Rights Bill, 1999 [ Seanad Bill amended by the Dáil ] : Report and Final Stages.

Friday, 30 June 2000

Seanad Eireann Debate
Vol. 163 No. 26

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An Leas-Chathaoirleach:  This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, “That the Bill be received for final consideration”, the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. Senators may speak only once on Report Stage.

Question proposed: “That the Bill be received for final consideration.”

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): Information on Tom Kitt  Zoom on Tom Kitt  I am pleased to report back to the House on a number of amendments made by the Dáil in the Copyright and Related Rights Bill, 1999, which passed all Stages in the Seanad last year. We have spent a long time working on this Bill and I thank Members for their assistance. We have had 12 meetings on Committee Stage, gone to the Dáil and now we are back where it all began.

As Senators anticipated in the course of their debate on the Bill, a large number of amendments were made by the Dáil. However, many of them were minor or technical in nature or were made in the interest of achieving the greatest possible consistency of expression across various parts of this very substantial Bill. In this report to the House I intend to concentrate on those [1899] amendments and groups of amendments that effect substantial changes in the Bill or relate to matters raised in the first place in this House. It will be clear that the two categories have a great deal in common.

I will first refer to amendment No. 12. Senators contributing to this debate expressed major concerns about regulating relations between copyright and related rights collecting societies and users of protected materials in such a way as to ensure that both groups would be treated fairly under the law. This amendment addresses one major aspect of this concern. It introduces a new system to govern the playing of sound recordings in public and the inclusion of such recordings in broadcasts and cable programme services. Under this system commercial users of sound recordings will be afforded a licence of right. This will allow them to use such recordings in this way provided they agree to make fair payments to the rightsholder and make payments at intervals of not less than three months in arrears. A dispute resolution mechanism involving references to the Controller of Patents, Designs and Trade Marks is provided for.

Amendments Nos. 73, 130 and 146 also deal with the supervision of rightsholder interests. These will require that all collecting societies operating under my part of the Act must be registered with the controller for the purpose. During debates in this House a number of Senators, including Senators Cox and Coghlan, proposed that collecting society registration be made compulsory. At the time the Office of the Attorney General advised me that compulsory registration would be a formality precedent to the subsistence and enjoyment of copyright. I was also advised that the imposition of formalities of this nature is forbidden by Article 5(2) of the Berne Convention on the Protection of Literary and Artistic Works at least as far as authors' rights collecting societies, such as the Irish Music Rights Organisation, are concerned. Following arguments raised by Senators and Deputies to the effect that compulsory registration was necessary to ensure transparency and the proper operation of collecting societies in general, I had the matter reconsidered. Following receipt of legal advice I was able to advance proposals to make registration compulsory by means of these amendments.

The question of collecting society supervision was the major theme of the debate on this Bill in both Houses. The Senators were the first to raise this question in this House and I thank them for doing so.

Amendments Nos. 9I to 94 provide for certain detailed improvements in the scheme of deposit of books to certain libraries. In particular, amendment No. 91 will allow the National Library of Ireland to seek delivery of any book circulated commercially in the State. This provision, which will effectively replace section 66 of the National Cultural Institutions Act, 1997, will facilitate the [1900] National Library in building up its collection of books of Irish interest, irrespective of where such books are first published. Amendment No. 94 will allow all deposit libraries to seek delivery of electronic copies of books in addition to hard copies where their first option is for a hard copy. This change, which was proposed by the Centre for Independent Living, is intended to facilitate deposit libraries in making modified copies of works for persons with disabilities.

I should also mention amendment No. 95, which re-enacts section 65 of the National Cultural Institutions Act, 1997, in a slightly updated form. Section 65 has the purpose of allowing the book deposit scheme to be extended to certain other materials, such as compact discs, microfilms and videotapes. This extension applies only to deposits in the National Library. The intention is to facilitate that library in building up its collections of cultural materials of specific national interest.

I understand that this section has not yet been commenced, but that my colleague, the Minister for Arts, Heritage, Gaeltacht and the Islands, is considering commencing it in the near future, in relation to some materials of a cinematic nature. The re-enactment under amendment No. 95 is necessary to ensure that section 65 continues to be operable in relation to the new version of the book deposit scheme contained in section 181 of the present Bill, which is structured a little differently from the corresponding provisions of the Copyright Act, 1963.

Senators will recall that their work on Committee Stage in this House persuaded me to withdraw and replace what I now understand to be an inappropriate restructuring of the book deposit scheme, and I am grateful to them for drawing my attention to that problem. My Dáil amendments limited themselves to making modest improvements in the book deposit scheme, including the related provisions in the National Cultural Institutions Act, on the basis of consultations between my Department and the Department of Arts, Heritage, Gaeltacht and the Islands.

As I said in previous contributions on the subject both in this House and in the Dáil, I recognise that this scheme has considerable importance, in particular in the national heritage context, even though its association with copyright is now entirely an historical one. However, the scheme has grown in a rather unstructured and unconsidered way over the years. It remains my intention to initiate an interdepartmental review of the scheme that will, in due course, allow the Government to consider proposals for the future of the scheme that will take full account of the views of all interested parties.

There are a number of other amendments of cultural and educational importance. Amendment No. 4 extends the definition of “educational establishments” in the Bill to include universities within the meaning of the Universities Act, 1997. I was happy to accept this amendment which, I understand, was suggested by the heads of the [1901] universities concerned. Of course, the definition currently appearing in the Bill is still not intended to be comprehensive. The Minister retains the power to designate additional categories of educational establishment where this is appropriate and I will consult my colleague, the Minister for Education and Science, about the appropriate scope of such designations prior to the commencement of this legislation.

Amendments Nos. 8, 9, 30 and 117 provide for the inclusion of museums and museum curators within the definitions of archives and archivists respectively and provide exceptions for certain types of curatorial copying of copyright works and recordings of performances which are, typically, carried out by museum curators. I am sure the House will agree that these amendments will be of value in the development of our cultural services.

A number of amendments are designed to improve the practical operation of various exceptions that were already contained in the Bill when it left the Seanad. For example, amendments Nos. 20 and 21 will allow the non-reprographic copying exception for educational purposes to apply, not only where the copying is carried out by persons giving or receiving instruction themselves, but also where such copying is carried out on their behalf.

Amendment No. 22 considerably clarifies the previous text governing the exception in favour of lending by organisations such as public libraries. I accepted amendment No. 31 to ensure that the copyright exception in favour of inter-library loans, already implicit in the Bill, is made clear and explicit. Important in this category of amendments are amendments Nos. 17, 107 and 312, which relax the definition of fair dealing exceptions by replacing the qualification that the copying concerned be “reasonably justified by the non-commercial purpose to be achieved” with a qualification that it “will not unreasonably prejudice the interests” of rightsowners. This change is more realistic in terms of the legitimate use to which these exceptions are put, and more consistent with international practice in this area. In relation to all amendments aimed at improving the basic exceptions in the Bill, I am very conscious of the role of this House in helping me to focus my concern on the views of the cultural and educational sectors in particular and I am very grateful to Senators for this assistance.

A matter of particular concern raised in debates on the Bill in this House was the question of whether exemptions in favour of research should be specifically in favour of “private” research. Senators will recall that I accepted a number of amendments from Senators Henry and Quinn to remove the qualification “private” in a number of instances, and I express my thanks to the Senators for their attention to this point. They may wish to note that Dáil amendments Nos. 36 and 232 make a similar change in the case of the folklore research exceptions in order to bring [1902] them into line with the research exceptions modified by amendments in this House.

One innovative proposal made in this House, which I did not feel able to accept at the time, was the introduction of a specific offence governing false claims of copyright which was proposed by Senator Brendan Ryan. My legal advice at the time was that the introduction of such a measure would be superfluous and that it could confuse the operation of the other copyright criminal provisions. Following further argument from the Senator's colleague in the other House, Deputy Rabbitte, I had the matter re-examined and, on the basis of further legal advice, I was persuaded to accept this innovation. It is introduced, in a modified form, by Dáil amendment No. 55. Amendment No. 126 introduces a similar offence in relation to false claims of rights in performances. I thank Senator Ryan for what has turned out to be a very useful suggestion.

I feel I must mention two groups of amendments which, though technical, have an important role in the overall operation of this legislation. These are amendments Nos. 72 and 74 to 79, inclusive, in Part II of the Bill and Nos. 131, 132 and 133 in Part III, which deal with qualification of works and performances for the protection of Irish copyright and performers' rights law under this legislation. Senators will recall that as a gesture in favour of a more liberal trade in intellectual property materials, the Bill as circulated would have extended Irish copyright and performers' rights protection, in effect, “to the world”. It was subsequently represented to me that this was inappropriate in view of the persisting unevenness of protection levels for these rights in some jurisdictions, in particular in the performers' rights area.

These groups of amendments will effectively limit qualification for the rights in question under Irish law to materials protected by corresponding laws in countries with which we share obligations under international law, in accordance with the principles of national treatment. This change brings the Bill into line with normal international practice in the area of copyright qualification.

Amendments Nos. 80 to 85, inclusive, deal with Government and Oireachtas copyright. In the debates in this House, Senators expressed concern about the abnormally lengthy duration that the Bill as published would have afforded to some Government copyrights and amendments were proposed which would have had such copyrights expire “in the normal way”. I could not accept these amendments because, in the absence of a measuring life, Government copyrights are incapable of expiring in a manner similar to normal copyrights. However, Dáil amendment No. 80 responds to the wish of Senators and Deputies for a more reasonable term of Government copyright by setting it a fixed term of 50 years.

As regards Oireachtas copyright, Senators will recall that I accepted amendments in this House transferring the copyright in Bills and Acts from the Government to the Oireachtas. At the time, [1903] I indicated that the Government had originally been assigned copyright in these materials on the basis that it could exercise the copyright interests concerned more conveniently than the Houses. Indeed, it has proved difficult to devise a provision through which Oireachtas copyright can be managed effectively, which can be seen to be consistent with the honour, dignity and privileges of the Houses of the Oireachtas and which can, at the same time, allow the citizen the most open access possible to legislative materials.

The management of Oireachtas copyright is now governed by the measure introduced by Dáil amendment No. 85, which contains a permission for free copying of materials covered by Oireachtas copyright, subject to conditions laid down by the Ceann Comhairle of the Dáil and the Cathaoirleach of the Seanad, such conditions to be laid before both Houses as soon as may be after they are imposed. This is viewed by some as a restrictive formula, but it is not intended as such. My advice is that this approach is both effective and consistent with the dignity of the Houses and consistent with their need to manage and protect their own documentation. Given the views expressed both in this House and in the other in favour of the most liberal approach possible to the making available of legislative materials to the public, I have no doubt that this provision will be operated in a manner consistent with these views and that the current Government practice of allowing free use of these materials will continue, subject only to such reasonable conditions as the Houses may see fit to impose.

I will reserve my final comments until I am summing up. I thank the House for the work it has done since initiating this Bill. When we started out we could not see the end of the process. This Bill was always signalled as the most complex and comprehensive Bill in the history of the Oireachtas. We discussed issues ranging from music and folklore to libraries and software, to name but a few. The Bill was detailed and technical. As Minister of State, my officials and I relied on the experts in this House. That is the purpose of the Seanad – for people to bring their experience to bear to improve legislation. That has happened as a result of our lengthy deliberations and I am pleased to have arrived at this point. I thank the House for its co-operation at all levels.

Mr. J. Doyle: Information on Joseph Doyle  Zoom on Joseph Doyle  I thank the Minister of State for his comprehensive address on the amendments made in Dáil Éireann to this extensive Bill. I did not play any part in the Bill's passage through the House but I note it is a Bill of 371 sections. It is a sizeable and complex Bill but it is a wonderful example of how our democracy works. A Bill is initiated in the Seanad, the Minister of State keeps and open mind and listens to the views expressed by Senators, examines the amendments, and takes some on board. He then hears other arguments in the Dáil, seeks legal advice [1904] and accepts other amendments. It would be of great interest to Members such as Senator Coghlan who proposed the collection of registration fees being made compulsory. Senator Ryan should be pleased that the Minister of State sought legal advice having heard his argument for a specific offence governing false claims of copyright. The Minister of State listened to his colleague in the other House and made the amendment.

It has been a good day for the Oireachtas that this Bill, initiated in the Seanad and amended in Dáil Éireann, has come back for its final report. I have no difficulty in commending the Bill to the House.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  This was a mammoth effort and I congratulate the Minister of State. It has been a philosophical exercise and I congratulate the officials and the Minister of State's secretary, whom I tortured while this Bill was being debated. At times they felt I had too many cultured and educated friends and it would have better if I had been left to my own devices.

I am very pleased that the entire section on deposit libraries was altered. That was very important. The changes in relation to the National Library will definitely be to its advantage.

I was glad our amendments on fair dealing were taken on board. It could have caused enormous problems if those trying to do private study had difficulties with copyright. The officials explained to me why there is a difference between the number of copies allowed for librarians and the number allowed for fair dealing and it was a reasonable explanation. The Minister of State dealt with the amount of a journal which could be copied. Frequently these journals cease publication.

There may be disappointment about the copying of Bills and Acts of the Oireachtas but the Minister of State did his best. It is interesting to see that in two cases he got contradictory legal advice. It is always worth getting a second opinion.

When prescribing libraries, I am sure the Minister will consult with professional bodies because they will want to be involved. While lending between libraries is explicitly stated, does that mean borrowing between libraries is implicit in the Bill? In Part III of the Act, there is a lack of clarity about the lending of recordings. Will the Minister clarify that matter for me in his concluding remarks.

An enormous amount of work went into this Bill and the Minister and his officials are justly proud of it. I am equally happy that the Minister of State's speech is printed on both sides of the paper. I can never understand why ministerial speeches are always only printed on one side of the page when we are supposed to be involved in waste management. This uses half as much paper but the words are just as good.

[1905]Mr. Moylan: Information on Pat Moylan  Zoom on Pat Moylan  I compliment all those who were involved in this Bill. It is a substantial Bill and is very important in terms of music and culture. Until now the scheme for the collection of copyright was badly structured. The many contributions made and amendments accepted make the Bill very worthwhile. I thank the Minister of State and his staff for the huge amount of work they have put into the Bill. It is one of the largest ever to pass through the Oireachtas and credit is due to all concerned. I look forward to the benefit it will bring to those involved in music.

Mr. Cassidy: Information on Donie Cassidy  Zoom on Donie Cassidy  I was the Fianna Fáil spokesman on the area covered by this Bill for 11 years. This is the most important legislation to come before the Seanad in the last 20 years. It is of enormous importance to employment. Only last week the Tánaiste announced 1,000 new jobs and £2 billion of investment at Intel over the next few years. All of this is a vote of confidence in the regulations and laws governing the economy. The manner in which this legislation deals with intellectual property is highly important. The wealth of our nation depends on how we handle software and intellectual property rights in the future.

We can learn from the Berne Convention of 1936 and the 1963 Act. This Act was long overdue and took a long time to put together. Those who have attended the world music publishers conference in Cannes every January for the past 32 or 33 years will know how important intellectual property is in the music, film or computer industries. We all know how investors in intellectual property in America have expanded the market over the years.

I accepted the bona fides of certain people from different industries during the passage of this Bill. When the Bill was sent to the Dáil from this House some organisations had concerns and I am glad the Minister of State has addressed them in the Dáil. The registering of the music rights organisations and the works of writers, composers, record company employees and publishers must be protected on the one hand but, on the other, the playing of such music in venues for the enjoyment of the public is equally important. An eminent Member of this House for more than 20 years, former Senator Bernie McGlinchey, who is alive and well and is still a member of Donegal County Council, has done a great deal for the music industry in general by employing young people down the years. I commend him for that.

Do music organisations have a right of appeal on decisions when they seek licences or renew licences? Are venue owners charged exorbitant fees, particularly in towns in rural Ireland with populations of less than 5,000? Music rights organisations cannot be permitted to put a gun to the heads of such venue owners who have kept the entire industry going for generations. Acting Chairman, I refer to your part of the country, the north-west, where the music industry has been a great source of employment for many young people over the years. A member of your family [1906] has been employed in the industry similar to family members of mine.

The Minister of State stated:

The amendment addresses one major aspect of this concern. It introduces a new system to govern the playing of sound recordings in public and the inclusion of such recordings in broadcasts and cable programme services. Under this system, commercial users of sound recordings will be afforded a licence of right allowing them to use such recordings in this way provided that they agree to make fair payment to the rights holder and make payments at intervals of not less than three months in arrears. A dispute resolution mechanism involving references to the collector of patents, designs and trade marks is provided for.

Is an appeals system now in place? I understand that up to now some rights organisations took it upon themselves to collect royalties on behalf of publishers and the creators of the original work. They charged prices which the venue owners could not afford, whether it was in Cashel, Letterkenny or Castlepollard. It must be understood that there must be a criterion for a certain level of population so that a blanket criterion could not be adopted. For example, a Dublin venue would have 1.5 million potential customers whereas a venue in a town or village in rural Ireland might only potentially have between 1,000 and 2,000 customers.

Common sense must prevail in all legislation. This Framework Document is the second largest Bill to come before the House in the past 20 years. The Companies Act, 1990, has more sections than this Bill. The House has debated this legislation for 87 hours while the Dáil spent 95 hours considering it. That demonstrates how important is this legislation. In 25 or 30 years countries throughout the world will refer to the Kitt legislation. Ireland is a leader in this field. Since the Minister of State took office he and his officials have invested enormous resources in this legislation. I commend him for that.

I have no other reservations regarding the issues raised by the Irish Hotels Federation, the Vintners' Federation of Ireland and others which were affected by this legislation. One section provided that hoteliers would have to pay for the use of televisions in every bedroom. Hotels in rural Ireland might only be busy for three or four months or the year while in Dublin city they might be busy for eight or nine months and the owners have fantastic businesses. However, that is not how business operates. Businesses must be kept open during the quiet months. I would like the Minister of State to respond on the appeals mechanism and to confirm that common sense will be used at the end of the day in regard to the playing of music.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): Information on Tom Kitt  Zoom on Tom Kitt  I thank Senators for their contributions. All of us [1907] have taken ownership of the Bill in some way and, hopefully, we have copyright on it. I thank Members for welcoming me and their kind words regarding the work that has been undertaken. I also thank my officials. There is an intellectual property unit in the Department which deals not only with copyright but also with patents, trade marks and many other issues. It is a growing area which is socially, economically and educationally important, not just culturally important. There are many important aspects to our work.

In response to Senator Henry, borrowing between libraries is implicit in the legislation. If one lends, another borrows. Section 226 provides for lending of copies of performances between prescribed libraries. I thank Senator Cassidy for the work that has been done. There were huge disputes between night club owners and collecting agencies, which was a well documented problem for many years. I was anxious that it should have been addressed.

We consulted far and wide with the organisations involved and all the issues referred to by the Leader can be referred to the controller for determination. We have strengthened the controller's hand by time limiting copyright arbitration allowing the controller to seek removal of overly slow arbitrators and to appoint assessors to assist in appeals. There were problems and the Leader correctly stated that there is a new licence of right for people who want to play music. Even if there is an ongoing dispute one has the right to play the music. There is also a dispute resolution mechanism involving the controller. Another important issue that was raised was the registering of all agencies. People wanted more transparency with regard to PPI and IMRO. They will be registered.

I have a strong interest in music and it a common characteristic of many Members. One of my sons is pursuing a musical career, so I suppose I had better put that on the record also. I am conscious of the many struggling artists, whether they are working as singers, songwriters, in film or as authors. This country is proud of the many tremendous artists it has produced over the years, and another stream of young artists is now coming to public attention. I have just returned from Expo 2000 in Hanover where Eavan Boland, Donal Lunny and many other artists were present, representing many different artistic sectors.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  More people visit Expo Ireland than any other stand at that exhibition.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  That is correct. In Hanover, 100 of the 153 days of the Expo 2000 have been set aside for cultural activities by the Irish pavilion. That represents much more than any other country and it demonstrates the importance of culture to this country, which is one of my areas of responsibility. It is important to demonstrate the strength [1908] of our arts and culture from street theatre to song and literature.

We have all sorts of tremendous artists and we must protect their interests and property rights. Whether we are talking about people in the music business, film industry, writers or economic activity linked to the software industry, we needed to update the existing legislation and we have now done that. Thanks to our work, modern legislation will now be in place and that was my ambition in introducing the Bill.

When I became Minister of State three years ago and saw the agenda, including labour, trade and consumer affairs – three very active areas – I saw this Bill as one of the greatest challenges of all. I have been to the House already to introduce labour legislation on trade union recognition and I will be brining more Bills before the House, but this Bill was always going to be the most complex.

Senators have helped me greatly by bringing their own expertise to the debate. I came to the House originally with a good Bill, but I am convinced that it is now a better one following its passage through the Seanad. On my own behalf and that of the Government, I wish to thank everybody for having helped me in getting the legislation through all Stages.

Question put and agreed to.

Question proposed: “That the Bill do now pass.”

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I wish to express my thanks to the Minister of State on behalf of a large number of people, particularly in Trinity College and the Dublin Institute of Technology, in addition to the various other vested interests that I have to take care of. People in the film industry and the sound recording sector will be extremely grateful for the amount of time and effort the Minister of State has put into the Bill. It is far better than the UK legislation, particular from the research point of view, because there is far more clarity. I am most grateful for the effort he has made with regard to the Bill.

Mr. J. Doyle: Information on Joseph Doyle  Zoom on Joseph Doyle  On behalf of my colleagues, who are not in the House today, I also wish to thank the Minister of State.

Mr. Moylan: Information on Pat Moylan  Zoom on Pat Moylan  I also wish to thank the Minister of State and his officials who were involved in producing the Bill. We look forward to better days with this new Bill for all involved in the cultural and music sectors.

Question put and agreed to.


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