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.