Mr. Gerry O'Brien:

On behalf of the membership of Irish Equity, Ms Quinn and I thank the committee for the invitation to submit our thoughts on the film tax incentive and for this opportunity to discuss that submission in person.

Section 481 is an important source of funding for the audiovisual sector. It has played a key role in the growth of the sector and in the creation of contract jobs for our crews, a whole new generation of animators and our members, the professional performers who populate the film and television productions that are produced in Ireland every year.

It is vital that we remember the most important stakeholder in section 481, namely, the taxpayer. Section 481 is the investment of taxpayers and it must be protected and the return on that investment optimised. With these stakeholders in mind, it is vital that the reputational, legal, and financial risks associated with the operation of section 481 are fully considered and effectively managed, and our full submission is chiefly concerned with these risks and how they can be managed.

For the purposes of this introduction, let us consider one of those risks. In the same way that contracted crews are protected by a range of employment legislation, all performers and creatives are protected by that legislation, as well as by the Copyright and Related Rights Act 2000 and the European copyright directive. However, although productions must sign a statement to the effect that they will comply with relevant employment legislation to secure section 481 investment, the Copyright and Related Rights Act 2000 and the EU copyright directive are not specifically listed in the statement. This legislation must be listed and applied in full and the rights of the performer must not be contractually overridden.

Why is this important? The real value of the film and television industry does not exist at the point of production. Rather, it is contained in the copyright and intellectual property of all the parties contributing to the final product. All performers own property rights under the copyright legislation. These property rights have a financial value to those who own them, namely, the performers, and those who want them, namely, the producers. The most important of these rights is the right to proportionate remuneration for the ongoing financial exploitation of the performance, as enshrined in Article 18 of the EU copyright directive. In order to manage this legislative risk, adherence to copyright regulation must become an eligibility requirement for section 481 applicants, if section 481 is to be consistent with Irish and European legislation. For the record, the protections provided by Articles 18 to 22, inclusive, of the European copyright directive state that the protection of authors and performers is the core principle that should inform the interpretation and implementation of said articles and that this principle implies that the articles have a binding nature and cannot be contractually overridden, except insofar as expressly permitted by the directive. Article 18 vests the performer with the right to an appropriate and proportionate remuneration for the ongoing financial exploitation of his or her work. What this means is that a small percentage of the worldwide revenue streams created by the ongoing sale of the production will find their way back to the performer. The European Copyright Society, ECS, states that these provisions have to be interpreted in a strict manner and should not serve as ways to exclude some contracts or situations from the protective provisions, to the detriment of authors and performers.

It is a concern to us, and a growing legal and reputational risk to the audiovisual sector, that Irish actors are being contracted on lesser terms and conditions than their international colleagues, as well as being denied their copyright, even though both Irish and international performers are being part-funded by section 481 taxpayer investment. To this end, section 481 must ensure that the Copyright and Related Rights Act and the EU copyright directive are implemented in full, that all agreements and contracts comply with the legislation protecting the rights of the artist, that there is greater transparency with regard to the assignment of performers’ property rights and their value to the end user as required by the Article 19 of the EU directive, and that indigenous Irish performers are engaged on terms and conditions equal to and not less than any other performer who qualifies under section 481. These steps will ensure the performer will have some protection within the negotiating process.

One of the motivations behind section 481 is the creation of quality employment.

The Olsberg report on the film industry states: "Economic net benefit is a more comprehensive measurement than fiscal net benefit as it recognises that governments do not invest to benefit their treasuries, but rather on behalf of all citizens as a means to raise standards of living." Section 481 must respect the rights of citizens protected under the copyright legislation and ensure that all performers share in the success of the industry in order that their incomes are increased and more of them enter the tax net. Section 481 must ensure that all creatives thereby benefit from a rise in their standard of living and the creation of sustainable careers in an otherwise precarious environment.