Dr. Eoin O'Dell:

Táim an-bhuíoch den choiste as an chuireadh chun freastal air inniu. Is mór an onóir dom a bheith anseo chun an cheist an-tábhachtach seo a phlé. I welcome the committee's consideration of the most appropriate way for the State to treat the national anthem and am grateful to the committee for the invitation to attend today. Preventing inappropriate use of the national anthem is important and encouraging its appropriate use is just as important.

At the outset, I would like to make two basic points. First, given that this consideration has arisen in part out of two Bills proposed by the committee's rapporteur, Senator Mark Daly, which proposed to use copyright law to prevent inappropriate use of the national anthem, I have to say emphatically that this is not what copyright law is for. Second, if the prevention of inappropriate use of the anthem is to be achieved, it should be done on its own terms and with clear definitions, not only as to what constitutes such inappropriate use but also as to how it is to be prevented.

On my first point, that of copyright, I entirely agree with the Minister of State. There should be no change to the copyright status of the national anthem. The music and words of "The Soldier's Song" and the words of "Amhrán na bhFiann" are all now out of copyright and are in the public domain, where they should remain. Attempting to bring them back into copyright or to assert a new copyright in them would be inconsistent with the functions of copyright law and incompatible with European law and the Constitution. It is for these reasons that I disagreed with the details of Senator Mark Daly's Bills last year. However, I agree with his larger point, which is being discussed today, about the need to treat the anthem with respect.

I did some research on the legal treatment of national anthems in similar jurisdictions and have drafted a Bill to address the kinds of concerns raised by the Senator. That Bill is the basis of the submission I made to the committee, which I will briefly outline. The Bill does not propose to use copyright to regulate the use of the national anthem, it simply does so directly. It sets out the things that ought to be considered. Section 3 of the Bill defines the national anthem but also acknowledges that all of the versions of the anthem so defined are in the public domain and thus not subject to copyright. That will not change. My recommendation therefore entirely agrees with that of the Minister of State so far.

As to the Bill I am proposing, I am not entirely wedded to all of the details. Left to my own devices, I would probably have had fewer provisions but I drafted the Bill to show the kinds of things such legislation does in other countries and might do here. I submitted it to the committee in the hope that it might be found useful in its deliberations and I am delighted to be here to discuss it. The Bill begins with the usual boring Short Title, commencement, definitions and so forth. Sections 3 and 4 define the national anthem and the presidential salute, reflecting both Government decision and common practice.

Section 3 defines the national anthem as the chorus of "The Soldier's Song", words by Peadar Kearney and music by Patrick Heeney, and that of "Amhrán na bhFiann", words by Liam Ó Rinn. It provides that these versions should be set out in a schedule. I should add that, reflecting Senator Mark Daly's success with the Recognition of Irish Sign Language for the Deaf Community Bill 2016 and having regard to other submissions the committee has already received and to other witnesses who will be heard in this session, it would not be difficult to add subsections here to provide for the words of the national anthem in Irish sign language as well.

Section 5 provides that the national anthem and the presidential salute should be performed and treated with respect and dignity and sets out various ways in which such respect and dignity might be expressed. The word "should" is crucial. Unlike a mandatory "shall", which creates a legal obligation, I agree with the Minister of State that the matter should simply be expressed as a hope or a desire without creating any affirmative duty. I suggest that persons present at the performance of the anthem or salute should, if practicable, remove headgear and stand at attention throughout the performance, given that is the standard appropriate means of showing respect. The "should" should be noted. I would add that, if that is not possible, people should otherwise treat the performance with respect and observe it with dignity, even if standing to attention is not possible.

Section 6 reinforces that the principles in section 5 are intended only for general guidance and do not give rise to any legal liability, whether criminal or civil. Again, I agree with the Minister of State that the matter should be non-binding and should not be compulsory. However, we have had examples of disruption of the national anthem by public disorder. Where that amounts to an offence provided for in the Criminal Justice (Public Order) Act 1994, the fact that this disorder disrupted the anthem might be taken into account as an aggravating factor for the purposes of sentencing.

It seems that the key issue is that of advertising and commercial activities. Section 8 is the core of my Bill. It attempts to define the kinds of advertising and other commercial activities for which not just the chorus but the entirety of "The Soldier's Song" and "Amhrán na bhFiann" ought not to be used. Again, it would not be difficult to add subsections to this section to provide for the words in Irish sign language. The key part is the requirement in section 8(6) that anyone who wishes to make commercial use of either "The Soldier's Song" or "Amhrán na bhFiann" should seek the prior written consent of the Minister for Finance. We have already heard from the Minister of State that the Department of Finance had carriage of the matter until the anthem fell out of copyright recently. The subsection goes on to provide that the consent of the Minister in this respect should not be unreasonably withheld. The key point is the attempt to define the commercial activities in question. I suggest regulation of commercial sound recordings, commercial broadcasts, commercial public performances, commercial publications and commercial communications to the public. I then go on to provide for various non-commercial uses for which the consent of the Minister would not be necessary, such as the charity example which the Minister of State gave.

The Bill finishes by providing for remedies, particularly where consent should have been sought but was not or was sought and was refused. In such circumstances, an advertisement using "The Soldier's Song" or "Amhrán na bhFiann" must not be published or broadcast. The publisher or broadcaster must not publish or broadcast it and the Minister could get an injunction to prevent any such publication or broadcast. Similarly, the Minister could also get an injunction against any other commercial activity for which consent was sought and refused. If the Minister were to be awarded damages in these actions or if there were fees to be levied for the purposes of consent for the performance, those damages or fees could be distributed under the National Lottery.

This is a very important consultation. I am very grateful for the opportunity to participate. I am more than happy to take questions and to assist the committee with this work now and in the future. Is mian liom an t- ádh a ghuí ar an choiste leis an obair tábhachtach seo. Gabhaim buíochas leis na Seanadóirí as éisteacht le mo ráiteas tosaigh.