Eamon Ryan (Dublin South, Green Party)

I move amendment No. 158:

In page 167, after line 36, to insert the following:

182.—(1) Section 2 of the Copyright and Related Rights Act 2000 is amended—

(a) by substituting for the definition of "broadcast" the following:

" 'broadcast' means a transmission by wireless means, including by terrestrial or satellite means, whether digital or analogue, for direct public reception or for presentation to members of the public of sounds, images or data or any combination of sounds, images or data, or the representations thereof, but does not include transmission by means of MMDS or digital terrestrial retransmission;",

(b) in the definition of "cable programme service" by substituting "including MMDS and digital terrestrial retransmission" for "including MMDS",

(c) by inserting after the definition of "database" the following:

" 'digital terrestrial retransmission' means the reception and immediate retransmission on an encrypted basis without alteration by means of a multiplex of a broadcast or a cable programme initially transmitted from another Member State of the EEA;",

and

(d) by inserting after the definition of "MMDS" the following:

" 'multiplex' has the meaning assigned to it in section 129 of the Broadcasting Act 2009;".".

Amendment No. 158 provides for a change in copyright law to afford commercial DTT platform providers the same opportunities as cable, IPTV and MMDS operators and on similar terms. This amendment involves the complex interface between commercial DTT issues, copyright law and broadcasting policy and accordingly has been developed in close co-operation with the Department of Enterprise, Trade and Employment to ensure compatibility with copyright matters. While this amendment was withdrawn on Committee Stage, it has been reintroduced as it is considered necessary to provide a fair environment for commercial DTT. Cable and MMDS services are closed service offerings that are only accessible to the subscribers of the service. In the same way, the commercial DTT service also will be a subscription-based service, which is only accessible to its subscribers.

The proposed amendment amends section 2 of the Copyright and Related Rights Act 2000 to ensure that the rules governing the acquisition of copyright by DTT operators are the same as those which apply to cable, MMDS and IPTV services. While the changes are to the definitions of the Copyright and Related Rights Act, the effective change is through the existing section 174 of that Act. The inclusion of DTT retransmission together with MMDS and cable in the definition of "cable programme service", puts DTT retransmission on the same footing as MMDS and cable. Section 174 reflects an EU directive, namely, the cable and satellite directive of 1993, which requires member states to have such rules for cable and MMDS. DTT, of course, did not exist as a technology in 1993.

Section 174 of the Copyright and Related Rights Act provides a mechanism for cable operators to retransmit channels from other jurisdictions without directly clearing rights with the rights holders. This law differentiates between the retransmission service offered by the cable operator and the broadcast or transmission services offered by broadcasters. The cable service is a closed, subscriber based service and is not accessible free-to-air to the general public. Under these circumstances, "retransmission rights" can be acquired, which provide the right to retransmit the programmes in a controlled manner to the subscriber base. For a cable service, a copyright collection agency is responsible for managing the acquisition of cable retransmission rights between the rights holders and the cable operator.

Amendment No. 158 seeks to extend this legislation to provide a similar mechanism for the management of retransmission rights over subscriber-based DTT networks. This will mean that when channels from other jurisdictions are broadcast on the commercial subscription DTT platform, the same collection agency approach will apply. This will help ensure the development of DTT in Ireland and allow for a level playing field vis-À-vis the cable and MMDS multichannel offerings. Having withdrawn this amendment on Committee Stage, my Department has, in co-operation with the Department of Enterprise, Trade and Employment and its legal advisers, given detailed further consideration to the issues. Such consideration included examining the position in other EU countries in which such a legal regime already exists.

As Members are aware, certain Irish broadcasters expressed concern about the amendment as tabled on Committee Stage. Those concerns have been listened to and the amendment now tabled has been changed significantly. I refer to the stipulation that services must be encrypted. This will draw a distinction between channels from other member states, which may be retransmitted free-to-air and which may be encrypted, as they are pay services. When a channel from another member state is retransmitted free-to-air on DTT in Ireland, it cannot avail of the benefit of this amendment, whereas it can when it has been encrypted. I believe this draws the necessary distinction between broadcast rights for Irish free-to-air broadcasts and for non-Irish retransmissions to meet the concerns raised.

See this speech in context