Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
Link to this: Individually | In context

I move amendment No. a1:

In page 3, between lines 13 and 14, to insert the following: "Amendment of section 38 of Principal Act

2. Section 38 of the Principal Act is amended in subsection (1)(b)(i) by the insertion of "single" after "agrees to make".".

The reason these amendments were not on the original list is because, thankfully, the delay in the committee dealing with the Bill allowed me extra time to consult RAAP and others to try to figure out something that was bothering me. RAAP has given me a lot of information. It is one of the key organisations representing Irish recording artists, actors and performers. It stands out as one of the collective management organisations that is registered. Its representatives are here today to give additional oversight. Pre-legislative scrutiny of the Bill was waived, which was strange. It is a short Bill but it has great implications for recording artists, performers and those who are producers. It is a pity that Phonographic Performance (Ireland) Ltd., PPI, had to be forced through the courts for us to realise the need for proper copyright legislation.

The reason for these specific amendments is to address the Bill's shortcomings. I hope the Minister of State will be able to look at and consider them.

The Bill contains proposals that focus on section 208 of the principal Act. Under section 38, PPI is empowered to collect the single equitable remuneration for which Article 8.2 of the directive provides. Historically, it has collected this revenue but was not obliged to share it in the proper manner with the performers. Section 38 is the carve-out from the copyright of the producers of sound recordings, which grants a licence for the right to use recordings subject to taking a licence and paying the equitable remuneration to a licensing body. The absence of conditions for the sharing of that single payment has enabled producers to exploit the situation to their benefit. In the end, that was the finding in the court case which led to this legislation being introduced. The court found that exploitation was done in the wrong.

Performers' rights were only introduced in 2001, following proceedings taken by the Commission against the State for its failure to transpose the directive correctly even partially and definitely not in full. That is part of an earlier question. As the first collector of remuneration, PPI used to contact RAAP, the organisation that helped me with this Bill. RAAP represents 5,000 Irish recording artists. PPI provided RAAP, on an annual basis, with a calculation of the total sum due to the performers. That calculation was the PPI's and was not an agreed calculation. One of the major problems was that PPI came up with its own formula, which it did not fully share with anybody in a way that was accessible. We are here because it was found not to be equitable. It did initially operate satisfactorily but there was a unilateral change made by PPI in 2014, which led to the court cases. PPI sought to oversee the calculations of individual payments to performers and to exclude payment to non-EEA performers who were considered not to qualify for the payment. We are attempting to address the flaw in our legislation. PPI allocated the payments it was not paying to the non-EEA performers to its members, the producers. It was withholding payments and redistributing them among its own membership.

RAAP issued proceedings, and we thank it for that. The artistic community thanks it. When it initiated those proceedings, PPI terminated the 2002 agreement, which was working, and appointed a UK collective management organisation, PPL. It represented the producers and performers and was to take the place of RAAP in calculating the sums due. This led to another problem because a second set of proceedings had to be taken by RAAP. Based on the requirement in section 208 of the principal Act, payments for performers must be subject to an agreement or fixed in default of an agreement by the controller of intellectual property. We will come back to that because it is one area in which I am not happy with the approach taken in the Bill.

Since the second set of proceedings were initiated, PPI took over the management of the shared right under the system that had been devised by it and RAAP. PPI now collects the revenue from users, makes a number of disputed deductions from the sums collected, determines the net distributable revenue to be shared with performers, uses PPL in the UK to calculate the payments to individual performers in accordance with opaque distribution rules and pays RAAP the sum it or PPL has calculated to be payable to the performers that RAAP represents, claiming that in the absence of agreement, this represents equitable remuneration. It denied RAAP's request for sufficient information about how those calculations were formed. There were clearly a number of errors in the calculations. If you do not have access to how it came to its calculation or the formula it relied on, it is difficult to adjudicate the matter. It manages the performer's right without being registered to do so with the controller and without any authorisation. That meant RAAP became a post box to which PPL sent on the remuneration for RAAP to pass on without any meaningful role as a collective management organisation.

Apart from denying RAAP a role in negotiating the share for performers or coming to an agreement on what that should be, RAAP was also prevented from being able to establish whether the payments allocated by PPI were correct. It was also denied the ability to confirm the identity of the performers whose money was being withheld by PPI. Those were the non-EEA performers. As I said, those moneys were being diverted to the producers.

Since the commencement of legal proceedings, the total revenue paid by PPI to RAAP for its members and the members of the collective management organisations with which RAAP has bilateral agreements has dropped by a substantial 20%. That drop applies to the gross revenues collected by PPI, which raises major questions. Ultimately, we are talking about artists, their rights and remuneration. If they are getting less money because of a unilateral decision made by one company, that is not justified. There should have been a figure of 50% or some other negotiated figure, but there was no negotiation. There has been a substantial drop in revenues.

Despite succeeding against PPI in the context of most aspects of the litigation, flaws in the legislation have to date prevented RAAP from being able to access an effective remedy to prevent PPI from continuing. Even though PPI would be aware of the changes and of the position with respect to the legislation and the directive, and the flaws involved, it has continued. That is why I welcome the fact we are addressing the issue. However, I have a number of issues with different aspects of the legislation.

We are dealing with amendment No. a1, which amends section 38. As stated, section 38 grants PPI, the producers' organisation, a dominant position. Performers are the weaker party in terms of bargaining power and wealth. With this amendment, I am trying to ensure that substantial payments due to performers cannot be withheld. One of the problems with being an Opposition TD is that we cannot put a cost on the Exchequer or the people. Groups sometimes ask for amendments, the exact wording of which we cannot accept. I had to be imaginative. I have tried to capture in full what was intended by amendments that were put forward.

I am open to tweaking these amendments a little based on the discussion today and bringing them forward again on Report Stage to give full effect to what RAAP and others have mentioned to me in my deliberations thus far. In fact, the best approach would have been for us to use the summer months to tease these issues out a bit more before taking the next Stage in the autumn. However, we are where we are and I will not delay proceedings too much. However, it is important, because we are talking about people's livelihood, to try to get this correct at this stage and, if needs be, on Report Stage.

I apologise for wandering a bit. Amendment No. a1 reflects a proposal by RAAP to correct an oversight in both the existing legislation and this Bill to ensure the right to the single equitable remuneration collected from users by the licensing body representing the producers of sound recordings is recognised as a shared right and is a payment for both performers and producers. The directive requires the right to be indivisibly accorded to both cohorts. It is the right to ensure that if a phonogram is used for broadcasting or any communication to the public, a single equitable remuneration shall be paid by the user. This is a right owed by the user to the performer and producer jointly.

Under current law and in the Bill as proposed, this right is granted exclusively to the producer, which is key, and is collectible by the collective management organisation, with a secondary and subsidiary right for the performer to claim a payment from the producer. The intention of the directive is singular, whereas we have a system that provides a lesser right for the performer. We are looking for a shared right, which is quite a different legal concept from the right to claim against a party. The miscasting of this right not alone fails the test of transposition but also supplements and augments the monopoly over collection accorded in the Act to producers, thereby creating fertile conditions for abuse of that monopoly, which we supposedly are trying to address.

These amendments are required to correct the existing position. At the very least, there must be an amendment to section 38 of the Act to clarify that the licence fee paid by the user represents remuneration for both producer and performer, as well as changes to the language of section 208 to support the correct characterisation of that right. Article 8.2 of the directive states that "Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user". That is how the right is set out in the directive. Amendment No. a1 would alter the wording to correct the legislation to provide that a user of a sound recording would agree to make a single payment rather than simply to make the payment. This would bring our legislation in line with the directive.

Which other amendments are being dealt with in this group, a Chathaoirligh?