James O'Connor (Cork East, Fianna Fail)
Link to this: Individually | In context

This meeting has been convened to resume our consideration of the Committee Stage of the Copyright and Related Rights (Amendment) Bill 2025, which was referred to the committee by order of the Dáil on 19 June 2025. I once again welcome the Minister of State at the Department of Enterprise, Tourism and Employment, Deputy Niamh Smyth. The Minister of State is responsible for trade promotion, artificial intelligence and digital transformation.

I propose that we publish the opening statement and briefing provided by the Minister of State on the committee's website. Is that agreed? Agreed.

At this point I confirm that Deputy Ó Snodaigh is substituting in for Deputy Conway-Walsh. The Minister of State will provide her opening statement and remarks.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

I thank the Chair and members for resuming this meeting today on this very important legislation on Committee Stage. I thank them for their patience and forbearance. I know we had a very robust discussion on the last day, particularly with Deputy Ó Snodaigh, and I look forward to having further discussion with members today.

I thank the Chair and members for facilitating the resumption of Committee Stage today and for their engagement on the Bill thus far. While the engagement was extensive and somewhat technical during the previous consideration of this Stage on 17 July we were able to conclude sections 1 and 2.

I welcome representatives from Recorded Artists Actors Performers, RAAP, who are in the Gallery. They have had continual engagement with my officials in the Department. I thank them for that as well. It is much appreciated.

I hope that we could conclude the remaining sections today in a timely manner, which would allow us to progress this important legislation through the remaining Stages of the legislative process. The committee's support and engagement on this important matter is very much appreciated. I apologise to committee members and to Oireachtas officials for having to reschedule this session on a number of occasions. I thank them for their forbearance. I thank them most warmly for their co-operation on the matter.

As I stated previously, the purpose of the Bill is narrow and it is to introduce the required amendments to the Copyright and Related Rights (Amendment) Act following a European Court of Justice ruling delivered in September 2020. It is imperative that this Bill be enacted to restore Irish copyright legislation to compliance with EU and international law. It has been over five years since the Court of Justice of the European Union judgment was delivered in September 2020 and we cannot delay the enactment of this legislation.

Once enacted the Bill will ratify our national legislation, which has been found to be in breach of EU and international law. The necessity of this is clear, and in particular as Ireland prepares to take ownership of the Presidency of the Council of the European Union in the second-half of next year. It is vital that we have an efficient legal framework in place to support copyright and intellectual property. It is an essential part of the economic health of the creative sector, in particular for the music sector, which is a significant employer in the State, and so important to us in terms of our cultural expression and well-being.

I would also like to reiterate that the Government proposes to introduce an amendment to section 2 on Report Stage.

I presented the committee with a detailed overview of it in last July. Before we continue proceedings, I would like to make a small clarification from the previous sitting on this Stage. During exchanges with members of the committee, I advised that there had been no referrals to the controller in the past 20 years. However, to clarify, as I mentioned during our previous sittings, there were no referrals to the controller under section 208 of the Copyright and Related Rights Act, until a referral was made in relation to the dispute between the two parties that was before the courts. However, referrals have been made under different provisions of the Act.

James O'Connor (Cork East, Fianna Fail)
Link to this: Individually | In context

I also acknowledge the members of RAAP. They are most welcome. I thank them for their ongoing engagement.

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

My intention is to oppose the section. I have outlined issues but a number of questions remain unanswered about this section. It would be helpful if the Minister of State was willing to publish the legal advice, but that usually does not happen. Maybe she will explain the basis on which it was determined to reassign the functions of the controller to the courts, because that is one of the major changes in this legislation. We have all seen reports over the years about how full the courts are. While the Minister of State stated that there has only been one case in the past 20 years, that is not to say that there will not be in the future. There could be a spate of cases, and the courts, as far as I am aware, do not have that expertise in place. It means that it would have to be ensured that the courts are a fit-for-purpose arbitration mechanism, whereas they are not at the moment. There is also the cost. If performers have to seek to vindicate their rights through the courts, there is a cost and a time factor too. While the Bill mentions a six-month period, the court proceedings are on top of that, so we are talking about quite a number of years.

In all of this, the preference is that people do not end up in arbitration, in court or anything else. There needs to be some mechanism that nearly forces those who are at odds with each other into arbitration. If it is to do with rights and the loss of earnings by performers, we need a mechanism that can and should be much quicker. The success of the controller being in place is that people have not had to so far resort too often to referring matters to the controller. Why are we changing something? If it is not broken, do not fix it. We can amend the controller and add to its powers and functions, and what adjudication and findings it can make, but I am still not sure why the change is happening. That is a key issue.

I might as well say on this section that I will come back on Report Stage with a number of additional amendments. Many are based on the summary that RAAP has provided, the detailed consideration it has given to this Bill and suggestions it has made to ensure that, when this Act is passed, it is the best possible legislation to deal with licensing bodies, producers, recorders, performers, and the collection of fees.

Section 208 of the Act should be changed to clarify that the right of performance is a right shared with producers and, unless agreed otherwise between the parties, that shall be 50% of revenues. That is a justifiable and documented cost of collection. It should retain and amend the role of the controller to determine disputes under the section and add a provision specifying that the calculation of the share of the individual performance will be carried out by a licensing body for performance rights with certain necessary credentials. In the event that there is more than one body and they cannot agree on which will conduct the calculations to provide for an application to the controller to determine which shall exercise the role, taking certain relevant matters into account, the third amendment would provide for an addition to section 208 of the Act that any licensing body registered for performers' property rights may, on renewal of its registration, demonstrate to the controller that it complies with the conditions laid down in the digital Single Market directive. It would extend its remit to cover performers who are not represented by a licensing body and, upon doing so, it may represent such a performer.

The conditions attached to this role include the obligation on a licensing body to maintain procedures for negotiation of equitable division of costs and benefits with any other licensing body that may satisfy the Commission. The fourth change was a minor change to the proposed wording of the Bill in section 4. I will read it here because I will deal with something else in section 4. It is to bring the legislation into line and full compliance with the decision of the Court of Justice of the European Union in Case C-265/19. Given that a major stakeholder has invested so much time in producing these amendments, I hope that on Report Stage at the very least we will be able to give it consideration. We have already teased out some of it but I will have further wording. The key at this stage is that I would oppose section 3, given that I have not seen the necessity to go to court in this instance. We have a system in place that could be beefed up to ensure that it is fit for purpose if there are problems with its mechanisms so far. We do not need to reassign the functions from the controller of intellectual properties to the court.

James O'Connor (Cork East, Fianna Fail)
Link to this: Individually | In context

Deputy Gogarty also wants to comment there, if that is okay.

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

Yes.

Paul Gogarty (Dublin Mid West, Independent)
Link to this: Individually | In context

Was Deputy Ó Snodaigh finished?

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

I am finished.

Paul Gogarty (Dublin Mid West, Independent)
Link to this: Individually | In context

Tá tú críochnaithe anois ar aon nós.

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

Tá mé críochnaithe faoi láthair.

Paul Gogarty (Dublin Mid West, Independent)
Link to this: Individually | In context

Faoi láthair.

James O'Connor (Cork East, Fianna Fail)
Link to this: Individually | In context

Buíochas le Dia

Paul Gogarty (Dublin Mid West, Independent)
Link to this: Individually | In context

Beidh níos mó níos déanaí. Gabhaim buíochas leis an Aire. I have some concerns about section 3. It goes back to the fact that the summer recess was supposed to create the opportunity to have discussions with bodies like RAAP and come up with some sort of workable arrangement. I still do not get the legal argument about why it would go to the Circuit Court and why it could not be done with the controller. I do not understand that. As Deputy Ó Snodaigh said, you could give additional powers. I was looking at the Commercial Court, which deals with issues that are valued at over €1 million. It deals with specialised disputes. The Circuit Court might not and I dare say will not know the intricate details of how the music industry works and how royalty disputes arise. It is not a straightforward issue. Sometimes it can involve small amounts, but it is the livelihood of individuals. Sometimes it is larger amounts. People who are specialised in the area should be the ones dealing with it. Why could the Government not set up an adjunct to the High Court like the Commercial Court that would deal with it if it ends up in that situation? It raises the question as to why it is not just left with enhanced powers for the controller.

I do not really get the logic. I know you are supposed to deal with stuff yourself. You got your 50:50 split and then if you still cannot agree, go to the court. However, if the Circuit Court does not reach agreement, then it is going to go further along the court process anyway. As well as the delays in the Circuit Court, we could end up with delays going on to the High Court and so on. It seems an unwieldy process, rather than having a special court or giving powers to the controller. I wonder how those issues are addressed and what sort of solace the Minister of State gave to groups like RAAP who see this as bureaucracy gone mad.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

I thank the Deputy for his thoughts and suggestions. As he alluded to, the 50:50 split is there and I hope that would ensure fair play. The big difficulty and challenge for the Department has been with enforcement and the controller not being in a position to provide the enforcement piece. This has led to where we are today, which is to bring it to the Circuit Court.

I assumed this question would be raised again so if members will indulge me, I will go through some of the points raised and some of the responses to the points raised. Since the enactment of the Copyright and Related Rights Act 2000, only one application has been made under section 208(5) for an order pursuant to section 298(8), submitted in September 2021. This case involved the same parties engaged in a broader legal dispute that had been before the courts at the same time as a referral to the controller. The nature of the disputes under section 208 often extends beyond the technical scope of intellectual property laws, requiring nuanced assessments of fairness, proportionality and contributions of involved parties. These types of evaluations fall outside the institutional remit and expertise of the controller, whose primary role is to focus on the administration and registration of intellectual property rights. In contrast, the courts' capacity to apply equitable remedies is supported by a rich tradition of case law and judicial practice.

The controller of intellectual property continues to play a vital role in the granting and registration of intellectual property rights in Ireland, including patents, trademarks and industrial designs as provided for under relevant legislation. Additionally, the controller maintains statutory responsibilities under the Copyright and Related Rights Act 2000, as amended, primarily concerning the registration of copyright licensing bodies and oversight of licensing schemes. The office of the controller also contributes significantly to public awareness of intellectual property rights and provides expert input to the Department in the development of legislation and policy aimed at strengthening Ireland's intellectual property framework.

A review of the controller of intellectual property functions was not deemed necessary in the preparation of this Bill, as its scoped was limited to matters relating to the sharing of royalties in sound recordings arising from the Court of Justice of the European Union, CJEU, judgment in case C-265/19. My Department will continue to monitor and engage in policy and legislative changes at EU level, including as part of the forthcoming review of copyright in the digital single market, DSM, directive 2019/790 EU. In this context, consideration will be given to the necessity for any further legislative changes to the Copyright and Related Rights Act, including the controller's statutory functions.

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

I move amendment No. 3:

In page 5, line 2, after “party to” to insert the following: “either of the following treaties, and applies the same approach to Irish citizens on the basis of reciprocity”.

The intention is to insert the following in line 2: "either of the following treaties, and applies the same approach to Irish citizens on the basis of reciprocity", whatever way "reciprocity" is pronounced.

Paul Gogarty (Dublin Mid West, Independent)
Link to this: Individually | In context

It is a hard one. Reciprocal.

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

It is a reciprocal arrangement anyway. While it is welcome that the Minister of State is finally bringing our legislation in line with the Performances and Phonograms Treaty, WPPT, of the World Intellectual Property Organization, WIPO, and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, I want her to clarify that countries will only qualify where this State will be treated in the same way under their laws for the purposes of sound recording. My amendment would add a commitment to the principle of a reciprocal approach, as a concern raised by some stakeholders in this sector was ensuring that it would be the same place throughout. It is a small additional burden, but not huge. That is the intention at the end of the day.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

I thank the Deputies for proposing this amendment. I understand the rationale behind it. While there is a real issue here, it cannot be resolved through this Bill. This is a very technical matter but allow me to outline the position.

One of the findings of the Court of Justice of the European Union in its ruling in this case, which gave rise to the Bill, is the issue of national treatment of nationals of countries party to international conventions and reciprocation of reservations entered by third countries. I will explain. Parties in international conventions agree to treat their own nationals in the same way as nationals from other countries that are also party to the agreements. However, some countries choose not to apply Article 15 of the WPPT, which is related to equitable remuneration. As is required, they notify WIPO that they are entering a reservation. Other countries could then respond to this reservation with reciprocal treatment. This is the case, notably, in the US.

The US has entered a reservation on payment of equitable remuneration to performers and producers with certain types of broadcasting and communications to the public, notably, radio. Other countries, including some in the EU, responded to the reservation by treating EU performers and producers in the same way that their nationals are under US laws. The case in the Court of Justice of the EU found that Directive 2016/115 has to be interpreted in light of the Rome Convention and WIPO. This means that EU member states must ensure that a single equitable remuneration is paid to the performers and producers who are party to international treaties and states may not limit this to the nationals of EU or the European Economic Area, as was the case in Ireland's copyright legislation.

The court ruled that EU member states do not have the authority to reciprocate reservations made by third countries. This right may only be exercised at EU level and not by individual member states. This is because it is an area of harmonised EU law and the EU has external competence. As a result of this part of the ruling, many member state royalties now have to be shared with third-country nationals where they were not previously. In some cases, this has reduced the royalty payments paid to EU artists and producers. We are aware of this issue, which we understand will also affect the Irish industry, once the Bill is enacted. However, neither Ireland nor any EU member state can legislate on this as it is ruled by the CJEU.

The European Commission has not yet tabled a legislative proposal to resolve the problem. However, many member states have raised their concerns about this issue and Ireland has supported them. The Commission has indicated that it is considering the matter carefully. A detailed study on the matter was published in April 2023. This is a topic that the Danish Presidency has tabled for discussion. Ireland will work constructively with other member states and the Commission to resolve the issue.

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

It is one those issues where it is difficult to quantify its full effect. My attempt was to try, at the very least, to ensure those who are performers and producers can get their fair share.

However, if in some countries there is a different approach, who is going to be at a loss? The Minister of State has just stated some countries in the EU will be at a loss or potentially at a loss. We do not know and I have not seen any quantitative research to show the full effect. How much will the Irish industry lose as a consequence of something that needs to be plugged in law by the EU?

We cannot just sit back and say we are waiting on the EU to fix this problem. We are a member state and will hold the EU Presidency next year. We should be among those countries seeking a solution. I presume it is the same for other member states. We need to be putting pressure on the EU to ensure a solution is found as quickly as possible so performers, and even producers, will not be at a loss because the EU has not got its act together to address a loophole or problem in the legislation. Is there any indication from the EU that this is one of the issues it is going to address? If we do not have sight of a solution now, it means it will be at least a year away. Not every country will adopt whatever changes come straight away. Somebody will lose as a consequence.

Paul Gogarty (Dublin Mid West, Independent)
Link to this: Individually | In context

While I take on board what the Minister of State is saying about the impact of the amendment, with regard to the spirit of it, we are now almost at the end of the Danish Presidency. Perhaps the Danes have already been examining this. I do not know. Obviously, after Cyprus, we will be back in the driving seat. Could the Minister of State possibly send a memo to the Taoiseach suggesting that, as part of our upcoming EU Presidency, we examine this issue and be at the forefront in following up on what Denmark has done? Perhaps she could cc the EU affairs committee. I am a member of that committee, as are some other members of this one, and I know that this is a matter we could possibly raise with the Cypriots before our Presidency. We do not want this to be parked for the next five years while it continues to affect people. As a country with a proud tradition of arts and creativity, we should be the ones ensuring the EU makes the final decision.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

I thank my colleagues. I agree with the sentiment of what they said. I was actually going to suggest that as part of our EU Presidency, we take the lead on this debate and discussion. Ireland is very highly regarded across the 27 member states for its richness of culture, heritage, music and performance, and there is a role for us to play in leading the charge if it has not progressed further by the time we hold the Presidency. I take on board members’ suggestions and will work with my colleagues and officials in the Department to determine how we can progress this as part of the EU Presidency.

On Deputy Ó Snodaigh’s point, Dutch performers have indicated an income loss of 16%. Therefore, we do have some figures. Discussions are ongoing. I do understand that this is a complex issue. We are waiting for a legislative proposal that can be agreed upon, working with the Commissioner.

To encompass everything that has been said here today, I agree fully with the sentiment expressed. We can take a leading role in this, particularly when we hold the EU Presidency. I will do what I can to ensure we keep this very high on the agenda.

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

A loss of 16% is scary for any performer.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

Yes.

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

Very few performers could afford that type of loss. It is not everybody; it is a big figure.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

I mentioned it just to demonstrate that we are keeping a close eye on this and trying to gather the facts and figures around it.

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

It demonstrates to me the need for speed on this so there is no ongoing loss over several years. As Deputy Gogarty said, we do not want this parked for five or six years, or longer.

Sometimes minor changes can have a great effect on the performers but in this case there will be a profound effect if it is not addressed. This is why they call it. I have no problem at this stage in withdrawing the amendment on the understanding that I will resubmit on Report Stage. If there is additional information from other countries, perhaps the Minister of State could share that with us to confirm or change the understanding that it is a 16% loss for those in the Netherlands.

Niamh Smyth (Cavan-Monaghan, Fianna Fail)
Link to this: Individually | In context

I take those points on board and I will revert. We can have further discussions on Report Stage.

James O'Connor (Cork East, Fianna Fail)
Link to this: Individually | In context

Do any speakers wish to make a contribution on the section? No.

James O'Connor (Cork East, Fianna Fail)
Link to this: Individually | In context

I thank the Minister of State and her officials from the Department for their attendance at this meeting today.