Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I thank the Minister of State for her answers, some of which reflect answers I received in response to parliamentary questions in preparation for this Bill. I will come back to them. In the proposed legislation, the term “reasonable collecting costs” is used. That is not defined. The general scheme of the Bill used the term “justifiable collecting costs”. The arguments being made by RAAP and others is that the term “justifiable collecting costs” is less likely to cause problems as it is rooted in Recital 28 of the CRM directive, which states “it is important that management fees do not exceed justified costs of the management of the rights”. Usually in law you try to use the same terms unless you are bringing in new terms and, therefore, a new definition. It is worth looking at that.

In respect of the issue of the controller and the courts, I am still not convinced by the Minister of State’s arguments or explanations as to why there is a need to scrap the role of the controller of intellectual property and force performers and producers to go to the Circuit Court as their first port of call. This is the problem. The Intellectual Property Office of Ireland is a State body, as the Minister of State has said, which is responsible for intellectual property rights, including patents, designs, trademarks and copyrights. In fact, in the future, some people may look for a European patent, rather than a patent from a single nation. That is a different argument, however. The office will obviously remain in charge of all of those areas, as the Minister of State said, but not sound recordings. That is bizarre. Something that is exclusively deserving of the same protections as any patent or design should fall under the controller’s remit.

The Circuit Court, as I argued already, is now being asked to take over the role. This is at a time when, if I go to the court today to ask for a hearing, I will be told that it will be at least December, if not January of next year, before I get that hearing. That is six months. The Bill proposes that a person must wait at least six months before even making an application. That is, therefore, one year before a person is guaranteed a date for a hearing. It could be longer than that. If there is an easier way, and if something is not broken, you do not have fix it.

I mentioned the cost of litigation. I do not know why we are doing this. I asked a parliamentary question as to whether any of the stakeholders asked for this change. The Minister said no representations were received, nor were there any lobbying efforts made by any stakeholder within the music sector regarding the transfer of functions concerning the dispute resolution of sound recording copyright from the controller of intellectual property to the Circuit Court. No one asked for it. I have a problem with clogging up our courts when there are alternatives.

I also asked why the Department does not believe that a controller is judicially competent because this function is being passed onto the courts. The answer, which was quite mind-boggling in some ways, reflects some of what the Minister of State just said, that is, that the necessary assessments, which involve fairness, proportionality and contributions of parties, fall outside the institutional expertise of the controller. Usually, when a function is outside the expertise of a body, you give it that expertise rather than just taking the function away because we are now going to have to create that expertise in the courts. That is the concern. If the controller’s office cannot be trusted to be fair and proportionate, why is it in charge of all other IP issues? It is not just the sound recordings in question. If it cannot be trusted on one element, how can it be trusted on anything else? It is a question.

The Minister of State might elaborate more on the justification for this move, either now or on Report Stage. On additional resources or expertise being required, she said that no major approach had been made to the Controller of Intellectual Property, thus far. I believe in leaving well enough alone. The controller's task, under section 208(8) of the current Act, is to "make such order as to the method of calculating and paying equitable remuneration as he or she may determine to be reasonable in the circumstances". That is the task at the moment and it is exactly the role that is being scrapped, with the Circuit Court being tasked only with determining the share of remuneration in an individual case rather than the methodology. Some of the problems that were identified in the cases taken by Recorded Artists Actors Performers, RAAP, involved the methodology as well. It was not just the specific equitable remuneration. It was that adjudication.

In regard to the third issue, it is still not clear to me why the proposed Bill appears to act as if remuneration, negotiation and dispute resolution are matters for the individual performers and individual producers, without any mention that the reality in the sector is that collective management organisations, CMOs, have the effective capacity. There seems to be a move away from the role of the CMOs because the Bill speaks of individuals rather than the organisations that have the expertise required and which have represented their members well. In the case of the producers, the CMOs probably represented their members too well, but that is a separate issue. In this case, we need to ensure there is no diminution of the role of the CMOs. Again, if it is not broken, do not fix it.

They are the three core issues. They are some of the issues we need to concentrate on to ensure that, when this Bill is passed, we have the best possible legislation to protect the roles of the producers, performers, artists, and, in my view, the controller, rather than the court.