Niamh Smyth (Cavan-Monaghan, Fianna Fail)
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I thank the Deputy. The rationale for the inclusion of the new section 3 is to provide legal certainty around the transition between the current arbitration process, which sits with the controller, and the new process in cases where agreements cannot be reached, which are to be referred to the Circuit Court. The relevant provision in the Copyright and Related Rights Act has been in place since that legislation was first enacted in 2000. There were no referrals in the first 21 years of the Act being in place. There has only ever been one application made under section 208(5) for an order pursuant to section 298(8) of the Act. That was in September 2021 in relation to the same parties that were in dispute before the courts. In that context, the Office of the Attorney General advised that the controller could not make a determination until the legal proceedings had concluded. These proceedings, insofar as they involved the State, were concluded in February 2021, when the High Court issued its judgment on the matter. At that time, it was understood that the exiting section 208 was legally defective, following the CJEU ruling, because it did not require remuneration to be shared with all performers. It became apparent to the Department of enterprise and to the then Controller of Intellectual Property that section 208 of the Act as it currently stands is not satisfactory.

Following the receipt of legal advice, including from the Office of the Attorney General, the Department of enterprise 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 a dispute by a controller under section 208 of the Act extended beyond the scope of intellectual property law and requires the application of equitable principles. Such assessments, particularly those involving fairness and proportionality and in respect of contributions of 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 well-established bodies of case law and a long-standing tradition of applying equitable remedies. The Office of the Controller of Intellectual Property is a reasonable entity when it comes to 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 regulation for which the controller has statutory responsibility. The controller also has certain statutory functions under the Copyright and Related Rights Act 2000. These are mainly concerned with the registration of copyright licensing bodies, references and applications relating 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 the input to the planning and drafting of certain intellectual property legislation, and the formulation and implementation of policy in relation to the development of the system of intellectual property rights protection.