Michael Ahern (Cork East, Fianna Fail)

I thank Senator Henry and other Senators who have made a positive contribution to the development of debate on this important area of the law in the context of debate on what is now the Copyright and Related Rights Act 2000, and on subsequent occasions. Senators will recall that the 2000 Act aimed, among other things, to implement in law the requirements of a number of international agreements affecting copyright law. Among these were new treaties on copyright and rights in performances and phonograms agreed by the member nations of the World Intellectual Property Organisation in 1996. This objective was shared by the directive on copyright in the information society, which is cited under its official reference by Senator Henry in the area of European Community law.

Bearing in mind this common objective, it was possible for the Government to anticipate most of the content of the information society directive in drafting and developing, with the aid of the Houses, the Copyright and Related Rights Act 2000. A minute examination of the relevant sections of the Act in conjunction with the directive, conducted by the Department of Enterprise, Trade and Employment in consultation with the Office of the Attorney General, has confirmed that this important objective was achieved.

As to the upcoming European Communities (Copyright and Related Rights) Regulations 2003, this is a limited legal instrument, designed to make only those changes absolutely necessary to address those few areas in which our efforts to anticipate the final form of the directive in the 2000 Act were not fully successful. The Department is advised by the Office of the Attorney General that the inclusion of any changes extending in the least way beyond this absolute necessity would exceed the powers conveyed by the European Communities Act to make secondary legislation of this sort, a circumstance which, as guardians of the primary legislative process, Members will understand.

In consequence, the scope of the proposed regulations is necessarily local and limited. It principally amends an exception allowing transient or incidental copies of protected materials, such as screen copies of literary works or technical copies made in the course of Internet operations, to be made without infringement of copyright. This essentially technical amendment is required because the current Irish exception is significantly different from the version in the directive and the directive makes this exception mandatory in its current form.

The other important change contained in the proposed regulations will allow the beneficiaries of copyright exceptions, who are unable to access protected materials because of the use by rightsholders of technological protection measures such as encryption, to apply to the courts to obtain the means of access, for example, a smart card. Again, the changes involved are made necessary by substantive differences between the directive and existing Irish provisions.