Jim Daly (Cork South West, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

On behalf of the Minister of State, Deputy Halligan, I am pleased to present the Copyright and Other Intellectual Property Law Provisions Bill 2018 to the House for consideration. As this legislation is quite detailed and technical, this speech is grouped thematically to make it easier to discuss the different elements of it. The manner in which the existing measures are set out in the Copyright and Related Rights Act 2000 means it is not possible for the amendments we are making in this Bill to follow a direct numerical sequence. The Department of Business, Enterprise and Innovation has produced a detailed explanatory memorandum that provides this information section by section. This document, along with the Department's regulatory impact analysis, will assist in reading the Bill before the House.

Perhaps it would be useful to begin this debate by providing information on the types of works covered by copyright legislation. This form of intellectual property law is most usually thought of as applying to books and other literary forms. Copyright legislation is the legal protection for a wide range of works from books to music, movies to software and databases to photographs. Existing legislation grants rights to the creators of such works to use, distribute and reproduce their work. Protections are afforded to performers, producers and broadcasters of works through what are known as "related rights". The owners of copyright and related rights are entitled to receive remuneration for the use of their work and to determine how their work can be used. The purpose of copyright law is to allow creators to retain this control and to receive remuneration for the use of their work. The current legislation governing these rights is the Copyright and Related Rights Act 2000. The 2000 Act is an important tool that allows our creative sectors to flourish while ensuring the holders of rights have an effective means of enforcing those rights.

As the Internet evolved and the digital age progressed, it became clear that a detailed review of the 2000 Act was needed to update and modernise the copyright regime in Ireland. To accomplish this, a copyright review committee was established in 2011 by the then Minister for Jobs, Enterprise and Innovation, Deputy Bruton. The committee was tasked with examining the Irish copyright framework from the perspective of removing any obstacles to developing and growing innovation. The committee received hundreds of submissions, resulting in the publication of a report, Modernising Copyright, which contained more than 60 recommendations covering a diverse range of copyright issues. Following the publication of the report, the Department of Business, Enterprise and Innovation engaged in extensive analysis and examination of the recommendations from a legal and policy perspective. A regulatory impact assessment was undertaken to examine which recommendations should be pursued by amending the existing legislation. This document, which is available on the Department's website, clearly outlines why certain recommendations were not implemented. The main reasons for not implementing recommendations were legal conflicts with existing EU law, the significant costs involved, the administrative burden that could arise from implementation and a lack of sufficient evidence supporting certain recommendations.

The Bill before the House implements some of the recommendations of the Modernising Copyright report and makes other technical amendments to the copyright regime. For example, it corrects an oversight that occurred during the euro changeover, when fines in Irish punts were not translated to euro and therefore not brought under the Fines Act 2010. In addition, this Bill amends the Patents Act 1992 to take account of two technical issues and to take into consideration evolving developments at EU level. The Bill also contains some amendments that are necessary for the transposition of EU Directive 2017/1564, which allows the EU to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled. After these amendments have been made, further secondary legislation will be required to transpose fully the directive.

As the legislation we are proposing contains a significant number of sections, I will discuss the main themes which outline its intentions. The Bill amends four existing definitions contained in the 2000 Act and provides for the inclusion of five new definitions which are important to consider when reading the Bill. One such amendment, which is set out in section 4 of the Bill, will have the effect of renaming the "controller of patents, designs and trade marks" as the "controller of intellectual property". Subsequent amendments in sections 40 to 42 carry this amendment across the other three intellectual property Acts - the Copyright and Related Rights Act 2000, the Patents Act 1992 and the Trade Marks Act 1996 - and change the name of the Patents Office to the intellectual property office of Ireland. These amendments better reflect the roles of the controller and the office across all intellectual property in Ireland and the more standardised naming conventions for such offices across the EU.

A substantial measure in this Bill is the proposal to provide greater court access for intellectual property claims by amending the 2000 Act to extend the jurisdiction of the Circuit Court and the District Court to hear intellectual property claims. This will allow rights holders to bring lower-value intellectual property infringement claims for relief in civil proceedings within the limits of those courts. This provision will improve possibilities for the enforcement of intellectual property claims, especially those that would not be economical to prosecute before the High Court, which is the general approach at present. Access to the lower courts for lower-value claims will be of particular benefit to rights holders who are pursuing infringement actions. Following consultation among policy officials in the Department of Business, Enterprise and Innovation, it was agreed that matters other than infringement cases should continue to rest with the High Court, operating as the Commercial Court. This has been provided for in the Bill.

The Bill makes relevant amendments to sections 38 and 39 of the Courts of Justice Act 1924 in relation to the jurisdiction of the District Court and to the Courts (Supplemental Provisions) Act 1961 in relation to the jurisdiction of the Circuit Court. This will ensure the rules of the court allow such cases to enter the lower courts, where judges previously had discretion to allow or refuse such cases, thereby providing certainty. Various later sections of the Bill - sections 46 to 79, inclusive, and sections 82 to 104, inclusive - make the necessary amendments to the Patents Act 1992 and the Trade Marks Act 1996, respectively. These sections amend references to "the Court" to show whether the matters relevant to each section should now be referred to the High Court or to the "appropriate court" in those Acts.

Several very technical amendments are proposed in this Bill to correct oversights or to clarify the intentions of existing provisions in the Copyright and Related Rights Act 2000. Amendments to existing provisions clarify that the authorship of a soundtrack accompanying a film shall be treated as part of the film; clarify that perpetual copyright does not exist in certain unpublished works; provide a 25-year term of protection for previously unpublished works, subject to first obtaining the consent of the owner of the work; make it an infringement in the context of photographs to tamper with metadata associated with the photographic works in order to allow for better protection of photographs, particularly in online use; and strengthen the provisions on rights protection measures, for example by extending the protection of rights protection measures to being a matter for civil infringement proceedings taken by a rights holder or licensee, as well as a matter for criminal infringement proceedings. The rights of a person acting on behalf of a broadcaster with regard to the copying of a work are being clarified by means of the insertion of a new subsection that will allow copying for the purpose of a broadcast or cable programme to be extended to a person acting on behalf of and under the responsibility of the broadcaster. The duration of copyright in works provided for in the First Schedule of the 2000 Act is being clarified by the inclusion of additional text.

There are also provisions to correct an oversight at the time of the euro changeover, resulting in a technical amendment to each of the three older intellectual property Acts already in force to convert their existing monetary amounts for fines and convictions from Irish punts to euro amounts and, where suitable, to amend those monetary amounts to the relevant classes of fines as stipulated in the Fines Act 2010.

Existing legislation provides for a 25-year term of copyright protection for designs and artistic works under the Industrial Designs Act 2001. This conflicts with the standard copyright term of protection that applied to artistic works, which lasts for the life of the creator plus 70 years. Following a ruling in a case before the Court of Justice of the European Union, Ireland must amend its legislation regarding the term of protection for copyright in designs and artistic works to ensure that these works receive the full copyright term of protection of 70 years after the death of the creator.

To provide businesses with sufficient opportunity to comply with any amendment, the Department of Business, Enterprise and Innovation conducted a public consultation to obtain the views of stakeholders and subsequently has opted for a two-step transition period of 12 months from the date of entry into force of the Bill. This ensures that Irish legislation complies with our international obligations while giving businesses sufficient opportunity to respond to the changes and to sell existing stock that would not comply with the amended provisions. Therefore, the Bill repeals sections 31A and 78B of the Copyright and Related Rights Act 2000, which relate to the 25-year term, with the new provisions bringing these works under the standard copyright term of protection being made in sections 8 and 20.

The Bill also implements a number of optional exceptions permitted by the EU information society directive. These include: extending the concept of fair dealing in copyright works for purposes of news reporting; creating an exception to copyright for use of copyright works to allow for caricature, satire and parody; making increased provision for the use of works by libraries and archives, including allowing libraries, archives and educational institutions to make a copy of a work in its collection for preservation purposes and for inclusion in catalogues for exhibitions; and expanding the exception to allow bodies to produce a copy of work for the advertisement of a public exhibition, as well as for the sale of an artistic work.

The Bill sets out a new provision to be included in the Copyright and Related Rights Act for text and data mining. This is the use of advanced automated data analytics techniques to examine text and other data for patterns, trends and other useful information. This usually requires copying of the work or database to be analysed to facilitate scientific research. The effect of this proposed exception is that it would not be an infringement of copyright to make a copy of a work for an algorithmic or technological process of computational analysis for the purpose of seeking to establish new facts, relationships, patterns, trends or anomalies. The introduction of such an exception would be of particular importance for the research and scientific community and in the context also of big data projects that rely on underlying data analytics to produce new results and new uses for those results.

EU copyright law contains a number of legal exceptions to copyright that allow for the use of copyrighted works without the express authorisation of the rights holder and without the need to compensate the author. The EU information society directive lists a series of exceptions to copyright that member states may incorporate into their own national legislation. Provisions contained in the Bill will expand many of the existing provisions of the Copyright and Related Rights Act to the full extent allowed by this directive and to take account of, and opportunities available due to, the advancement of new digital technologies. The Bill sets out amendments to the Copyright and Related Rights Act in various sections intended to expand the existing provisions on exceptions to copyright and related rights for the purposes of education. This will provide greater clarity around the use of copyright material in scientific and other research.

The various exceptions proposed would also allow for greater provision of education and training via distance learning and elearning, which is in line with the changing provision of education and training in Ireland and better facilitates the use of technology in the classroom or remotely. The Bill also includes additional protection for rightsholders by making these exceptions subject to a licence override, where suitable licences are available. This will allow educational institutions to benefit from access to copyrighted material while serving to protect rightsholders’ commercial objectives.

One of the definitions amended by the Bill is the definition of "disability", which is now updated to the meaning of disability assigned under section 2 of the Disability Act 2005 rather than the very restricted definition under the Copyright and Related Rights Act. This amendment is of particular importance as the Bill expands the existing exception to copyright for the benefit of persons with any disability. The provisions are designed to provide for the greater availability of suitably-modified versions of copyrighted works for use by persons with a disability, as allowed under the EU information society directive to which I have previously referred. Currently, designated bodies that represent the interests of persons with disabilities are only allowed to make a single modified copy to meet the individual needs of an individual person with a disability in response to a specific request, placing undue burdens on such bodies or organisations. The amendments allow designated bodies to create multiple copies to have available for those needs of disabled persons and to facilitate transmission of those copies to other designated bodies as well as directly to individuals with a disability. Designated bodies will be permitted to request a copy of a work that can then be copied and modified for the specific needs of a person with a disability. This will then allow that body to create additional copies of that modified work for the use by persons with disabilities. Given advances in technologies, it may now also be possible for persons with disabilities to undertake necessary modifications themselves using suitable software, etc.

Taking these advances into consideration, the Bill features a new provision that allows an individual person with a physical or mental disability to make a personal copy of a work modified to meet their special needs rather than having to obtain such a modified copy from a designated body, allowing such persons a level of independence and not placing an onus on them to rely on a third party. The Bill also sets out a new provision that introduces an anticipatory duty on publishers to make suitable copies of the work available to designated bodies on request. This will facilitate these bodies to make suitably-modified copies available for persons with disabilities.

The Bill includes a provision amending the Copyright and Related Rights Act that is aimed at broadening the copyright deposit system to enable existing copyright deposit institutions to accept published material in digital format as well as, or instead of, physical copies. It is a modest amendment to allow copyright deposit institutions in Ireland to accept publications in electronic format on a voluntary basis while creating an obligation on publishers to comply with any request for such material in an electronic format.

Since the Government approved the drafting of the general scheme of this Bill in July 2016, two technical issues that require amendments to the Patents Act 1992 have arisen. The first is an amendment to open the national route for Patent Cooperation Treaty, PCT, applications. This amendment provides for a technical amendment to section 127 of the Patents Act to allow patent applicants to choose to convert an international patent application into a national patent application. It is a result of a more robust patent examination procedure introduced in the knowledge development box legislation in 2017. Prior to this, patent applicants would only have had the option of applying for a patent through the European patent route. Applying through the national route is a less expensive option. During the international application process, which usually takes about 31 months, applicants may discover that an international patent is not suitable. This may be due to the high costs involved, the patent may not be commercially viable, protection in international markets may no longer be necessary or the results of the search report and written opinion may preclude the patent from being granted in certain countries. This facilitates the opening up of the "national route" for PCT applicants, which will provide an additional choice to applicants not available up to now.

The second issue arises from an unintended consequence of an amendment to section 31 of the Patents Act in the recently enacted Knowledge Development Box (Certification of Inventions) Act 2017. Prior to the amendment, when a patent application was received by the controller of patents, designs and trade marks, it was subject to a formalities check to ensure that the application had been completed correctly and met the minimum standard set out in the Patents Act to qualify as a valid patent application. Should the application not meet the required standards, it could be refused.

Following the implementation of the knowledge development box Act, patent applications that do not meet the minimum standard cannot be refused after this "formalities check" but instead must be subject to substantive examination and investigation before being refused. It was never the intention to remove the power of the controller to refuse patent applications that did not meet the minimum standard. Therefore, it is necessary to correct this unintended consequence by removing the text inserted by the amendment to section 31(1) of the Patents Act 1992 and returning it to its original format of section 40.

I reiterate that the Bill is an important and technical piece of legislation that will, when implemented, modernise and expand copyright and related rights in Ireland, which is why it is important that it progresses quickly through the Houses. I am pleased to commend this Bill to the House on behalf of the Minister of State, Deputy Halligan, who looks forward with interest to the contributions of Members on this and subsequent Stages of the Bill in this House.

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