Niamh Smyth (Cavan-Monaghan, Fianna Fail)

I thank the committee for the contributions so far.

I am ably advised by the fabulous officials on either side of me. There had been no referrals in the past 20 years to the controller - perhaps that says something in itself - until this dispute arose. The sense was the controller perhaps did not have the expertise and that is why going to the courts would probably be a higher level of expertise on this issue.

Referring back to Deputy Ó Snodaigh's amendment, I thank him for proposing it but on this occasion I will be rejecting it. First, on amendment No. e1, in subsection (1), the Deputy has suggested wording which includes "justifiable" collecting cost rather than "reasonable" collecting cost as it is included in the Bill. This wording was carefully considered and reasonable was deemed more appropriate as it requires consideration of the questions of fairness.

On that basis, the wording on the proposal proposed in the Bill is preferred. We believe it provides the intended level of protection for performers. Additional provisions in relation to this apply via the collective rights management regulations.

With regard to the proposed subsections (2) to (5), inclusive, in the amendment, there is no need to include provisions around the ability of the collective management organisations. It is already the case that a performer or a producer may be represented by their representative body or collective management organisation for the purpose of reaching an agreement under this section. It is provided for by section 208(2) of the Act, which states that the right to equitable remuneration can be assigned by a performer to a collecting society to exercise that right on his or her behalf.

In addition, the proposed subsection (3B) in the Bill states that the sharing of equitable remuneration can be agreed by or on behalf of the performer and the owner who is the producer. As subsections (3C) and (3D) follow on from subsections (2) and (3B), there is no need to repeat this in each subsection. The amendment is, therefore, unnecessary.

Similarly, the proposed subsection (6) of this amendment is not necessary as it is already provided for in the copyright Act.

With reference to paragraph (5)(b) in the amendment, there is also no need to state that collections of moneys must follow the provisions of the CRM directive. This is already provided for in Irish law.

I also cannot accept the suggestion that unidentified sums must be paid to the largest CMO in paragraph (5)(c) of the amendment.

Proposed subsections (7) to (9), inclusive, of the amendment concern the process to be followed where agreement cannot be reached as to the sharing of equitable remuneration. The Deputy wishes to retain the current role of the controller as the arbiter, which the Government does not accept. The Bill removes this function from the controller. It is necessary, in the view of the Government, to do so.

Following the receipt of legal advice, including from the Office of the Attorney General, my Department determined that the reassignment of functions from the controller of intellectual property to the courts constituted an appropriate and necessary course of action. Adjudication of the dispute by the controller under section 208 of the Act extends beyond the scope of intellectual property law and requires the application of equitable principles. Such assessments, particularly those involving fairness, proportionality and respective contributions of all parties, fall outside the institutional expertise of the controller. In contrast, the courts possess the requisite experience and knowledge of case law to adjudicate on matters of equity, drawing on a well-established body of case law and a long-standing tradition of applying equitable remedies.

The controller of intellectual property is responsible for the granting and registration of intellectual property rights in Ireland, specifically patent, trademark and industrial design rights, as provided for under the various Acts, rules and regulations for which the controller has statutory responsibility. The controller also has certain statutory functions under the Copyright and Related Rights Act 2000, which are mainly concerned with the registration of copyright licensing bodies and referencing and applications related to licensing schemes operated by these bodies. The office of the controller of intellectual property also disseminates information on intellectual property rights and provides my Department with input into the planning and drafting of certain intellectual property legislation, as well as the formulation and implementation of policy regarding the development of an intellectual property rights protection scheme. A full review of the controller of intellectual property’s functions was not deemed necessary in the preparation of this Bill, as its scope is limited in matters relating to the sharing of royalties in sound recording arising from the Court of Justice of the European Union’s judgment in C-265/19.