Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendment No. e1:

In page 3, between lines 13 and 14, to insert the following: "Amendment of section 208 of Principal Act

2. Section 208 of the Principal Act is amended by the substitution of the following subsections for subsections (1) to (9):

“(1) A performer has the right to share equally with the copyright owner in the sound recording the equitable remuneration for which provision is made in section 38(1), after deduction of the justifiable costs of collection.

(2) The right of the performer in subsection (1) may be exercised through a collective management organisation registered as a licensing body with the Controller of Intellectual Property to manage performers' property rights, under section 286.

(3) The exercise of the right of the performer pursuant to this section shall include the right of a collective management organisation to participate in decisions concerning the following:

(a) the negotiation with the parties referred to in section 38(1);

(b) the calculation of the justifiable costs of collection;

(c) the calculation of the net distributable revenue after payment of the justifiable costs of collection;

(d) the manner and timing of the payment of the total net amount due to performers.

(4) The calculation and payment of the amounts due to individual performers shall be conducted in compliance with the provisions of the European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations 2016.

(5) (a) The collective management organisation representing the copyright owner in the sound recording shall not retain any monies due to performers.

(b) All sums due to performers shall be paid within the time limit specified in Regulation 11(2) of the European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations 2016.

(c) Sums identified as being due to unknown or unidentified performers shall be paid to the collective management organisation representing the greatest number of performers in the State, which shall be obliged to attempt to seek out and pay such performers.

(6) The right of the performer under this section is transmissible by testamentary disposition or by operation of law, as personal or moveable property, and may be assigned or further transmitted, including by assignment, by any person who legally acquires the right.

(7) Where the sharing of equitable remuneration in accordance with subsection (1) is not acceptable to a performer or a copyright owner in a sound recording, an alternative sharing of equitable remuneration as between a performer and a copyright owner in a sound recording may be agreed by the performer and the copyright owner concerned, including through negotiation by their respective collective management organisations.

(8) Any dispute arising under this section may be referred by or on behalf of one or more of the parties affected by the dispute to the Controller of Intellectual Property, who shall consider the matter and make such order, subject to the provisions of this section, as he or she shall think fit, within 6 months of the making of such application.

(9) An order made under this section shall have effect from the date on which it is made or such later date as may be specified by the Controller of Intellectual Property.".".

Amendment No. e1 is grouped with amendments Nos. 1 and 2. Amendments Nos. 1 and 2 were submitted before Committee Stage of the Bill was delayed. The extra time afforded me further time to speak to those who represent the different organisations. Having looked at the Bill again, without the rush caused because the previous committee did not adopt a pre-legislative scrutiny approach on it, while I had an inkling that there needed to be a change, I was able to talk to Recorded Artists Actors Performers, RAAP, and others and put forward the more comprehensive amendment No. e1. Therefore, I will withdrawn amendments Nos. 1 and 2 and concentrate my discussion on amendment No. e1.

Amendment No. e1 is, in many ways, one of the key amendments I am putting forward. It deals with some of the points I have already elaborated on and I will try not to repeat myself. This is dealing with section 208 of the principal Act. It is substituting the subsections (1) to (9), inclusive, and setting out the rights in clear, unambiguous terms.

While I have spent a lot of time here, I am not necessarily the be-all and end-all of drafters. However, we, and RAAP in particular, have captured the essence of what is required. I am not precious enough to say that it does not need a tweak here or tweak there, but it should be accepted that a performer should have the right to share equally with the copyright owner in the sound recording the equitable remuneration from that. That is subsection (1).

Subsection (2) provides that the right of the performer in subsection (1) may be exercised through a collective management organisation registered body with the Controller of Intellectual Property to manage property rights. I think we accept the principle of that.

Subsection (3) states that the exercise of the right of the performer pursuant to this section shall include the right of a collective management organisation to participate in decisions concerning four points, which are listed, namely, the negotiation with the parties referred to in section 38(1), the calculation of the justifiable costs of collection, the calculation of the net distributable revenue after payment of the justifiable costs of collection, and the manner and timing of the payment of the total net amount due to performers. That is the exercise of that right.

Subsection (4) of the new section provides that the calculation and payment of the amounts due to individual performers shall be conducted in compliance with the provisions of the European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations 2016. That is important to ensure that is as clear as possible.

Subsection (5) states that the collective management organisation representing the copyright owner in the sound recording shall not retain any moneys due to performers. That is setting out that it cannot withhold any remuneration due. It states that all sums due to performers shall be paid within the time limit specified in the regulation set out in the amendment and that sums identified as being due to unknown or unidentified performers shall be paid to the collective management organisation representing the greatest number of performers in the State, which shall be obliged to attempt to seek out and pay such performers.

The principle of this is a collective management organisation in Ireland - one of those being RAAP - will be the holders of any funds identified which are due to somebody who has not been identified. This can be held until those people who are due it are identified and those funds are then passed onto them.

The right of the performer, under the proposed subsection (6), "is transmissible by testamentary disposition or by operation of law, as personal or movable property, and may be assigned or further transmitted, including by assignment, by any person who legally acquires the right". This ensures some of what I was speaking on earlier regarding those who are represented by the collective management organisations which are acting on behalf of the performers and artists. This is where this can be set out. As I said earlier, this legislation does not expect each individual performer or artist to pursue or try to track down where their performances are used to figure out what costs are due to them and so on.

Subsection (7) states the sharing of equitable remuneration will be done in accordance with subsection (1) and where it is not acceptable to a performer or copyright owner in a sound recording, an alternative sharing of equitable remuneration as between a performer and copyright owner in a sound recording, may be agreed by the performer and copyright owner concerned, including through negotiation by their respective collective organisation.

Subsection (8) states:

Any dispute arising under this ... may be referred by or on behalf of one or more of the parties affected to the Controller of Intellectual Property, who shall consider the matter and make such [an] order subject to the provisions of this section as he or she may think fit, within 6 months of the making of such an application.

This is one of the key changes I think the Minister of State was addressing in encouraging people to go to court and taking away the power of adjudication from the controller of intellectual property. One of the concerning issues is our court system is already clogged up - bunged up to the door - yet, where we have a competent mechanism - the controller of intellectual property - we are suggesting we bypass them and the disputes be referred to the courts. I encourage the Minister of State and drafters to look again to see can we ensure the powers or the standing of the controller of intellectual property is such that it can adjudicate rather than clogging up our courts. Outside of clogging up the courts - which are already clogged up enough - it is the cost. Once you enter court, there are legal costs on both sides. It is set at a low limit but that would not be exclusively so, depending on the amount of money in question. I am not a legal expert but if there is a substantial sum of money under dispute, you end up at the Circuit Court and High Court or whatever. At each stage, there is higher liability or a higher chance those taking such a legal case will back out because they do not have the money or their organisations could be hamstrung by the concern of the higher sums of money.

In the past RAAP had to take cases and we should all be thankful it did because we are now dealing with legislation on foot of that. It is not its role to do so. In some ways, it is but we need to find ways where we are not ending up in court time and again with costs involved. We should ensure that where we have opportunities to avoid that, disputes can be dealt with through mediation and arbitration. Everyone is entitled to go to court one way or the other. If there is a dispute where people are not happy with the resolution, they can go to court. In this instance, I presumed one of the controller of intellectual property's key roles was the arbitration in the event of disputes but we are moving away from that in this legislation.

The final part of the amendment provides that an "order made under this section shall have effect from the date in which it is made or such later date as may be specified by the Controller of Intellectual Property". I will leave it at that and let the Minister or other people go.