Michael Ahern (Cork East, Fianna Fail)

I bring the Copyright and Related Rights (Amendment) Bill 2004 before the House today in order to clarify the position regarding one aspect of the Copyright and Related Rights Act 2000. Intellectual property legislation provides for a complex, multi-layered system of protection for rights holders. As in any other area, the legislator must seek to strike the right balance between, on the one hand, the rights holders who will be seen as the beneficiaries and, on the other, the users. While I use this distinction, there is no doubt that users also benefit from intellectual property legislation, directly or indirectly.

The rights granted are often of immense value and will vary depending on the nature of the intellectual property concerned. For example, it is possible to renew a registered trade mark indefinitely. This recognises the effort required of the holder to make the trade mark valuable to him. On the other hand, with some exceptions, patents have a validity of 20 years only. The patent system is, in a sense, a contract between the State which, representing society, grants a monopoly to the inventor to profit by his invention in return for his making the product available for general use during the term of patent protection and for making the secret public in order that all may exploit it when the patent expires. In a similar way, the rights granted under copyright and related rights legislation are intended to represent a good balance. For example, the duration of copyright will vary depending on the nature of the protection granted.

Whether we read books, listen to music or watch television or films, all these activities which improve the quality of life would not be possible without copyright. While the rights holder may properly benefit, it would be foolish to believe that we would have the kind of publishing and entertainment structure we now enjoy if copyright protection was not in place to underpin it. In accordance with the 2000 Act, copyright subsists in, inter alia, original literary, dramatic, musical and artistic works, sound recordings and films, with certain rights, such as the distribution and reproduction right, given to the holder of the copyright.

The purpose of the Bill is to remove any doubt about section 40 of the Act, which provides that the right of making available a work to the public includes, inter alia, performing, showing or playing a copy of the work in public. In the context of the Act, work means, with some exceptions which do not affect the issue before us today, a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, typographical arrangement of a published edition or an original database, and includes a computer programme.

To what does section 40, in particular the reference to the word "showing", relate? I am satisfied that the reference to "showing" was intended to cover audio-visual works, for example, the showing of a film. It has been suggested, however, that the reference to "showing" effectively created a public exhibition right. It has been suggested to us that the showing of an original protected artwork in the permanent collection of a gallery could be a restricted act. This would mean, for example, that an artist could prevent the "showing" of his or her painting by a gallery. Would that be reasonable?

A case can be made that artists should enjoy a public exhibition right. At one point during the passage of the Copyright and Related Rights Act 2000 through the Oireachtas, consideration was given to the introduction of such a right. This was subsequently dropped, which makes clear that it was not the intention of the Oireachtas to create such a right.

The fact that a gallery may exhibit a work does not mean it holds the copyright. When selling a painting an artist will, in many instances, retain the copyright to secure benefits from any subsequent commercialisation of the work through posters, photographs and so forth. That the painting in question has been sold does not mean the artist has lost the rights to future revenues.

One of the grievances of artists, that they do not benefit from a subsequent sale of their painting possibly at a much higher price than they receive, is being addressed. In September 2001, the European Parliament and the Council adopted Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art, the so-called droit de suite. The transposition date for this directive is 1 January 2006.

On balance, I believe maintaining the status quo is justified. The position is perhaps more clear-cut in the case of literary works, where the main benefits will typically accrue from the publication of the work, from which moneys will flow. While section 40 does not create a public exhibition right, the suggestion that it does or might do creates an element of uncertainty. I am not aware that actual difficulties have arisen but I am conscious that this poses problems for those involved.

If a gallery is approached by a rights holder, should it pay, risk closure or leave the matter to the courts? This is an unsatisfactory position which should be resolved. We had already made clear our intention to make the amendment in an appropriate intellectual property or copyright Bill. Given that many exhibitors may be faced with difficulties in this area, we have decided to make the amendment now, rather than awaiting a suitable intellectual property vehicle.

It may be helpful to give some specific examples of what could be affected. Occasional exhibitions by the National Museum of Ireland could be affected if the museum holds works still in copyright and wished to display such works in the context of a specific exhibition or under a specific theme. Items on display in the National Gallery of Ireland, which are considered important heritage items and form an integral part of the story of the progression of art in Ireland, would also be affected. They include works by Louis le Brocquy, Paul Henry and Jack B. Yeats. In addition, works on display at the Irish Museum of Modern Art, a large percentage of which are by living or recently deceased artists would be affected. The role of IMMA, which incorporates an award winning education and community department, would be severely hampered by any doubt over the existence of an exhibition right. The National Library of Ireland may be inhibited in its plans to place the works of some of Ireland's greatest writers on display. It has been developing new exhibition spaces specifically to facilitate such displays. This would have a negative effect on its efforts to enhance its role as the repository of the world's largest collection of Irish documentary material.

There are many other galleries in this country with established national or international reputations, which could be affected by uncertainty on the question of exhibition rights. Two examples are the Crawford Gallery in Cork and the Hugh Lane Gallery in Dublin where the Francis Bacon exhibition has created great interest.

It is also possible that the application of the exhibition right to literary and artistic works would travel to Ireland from abroad. Once works where copyright is extant arrive in Ireland, often following lengthy and complex negotiations, the copyright owner could take an action against the public or private institution planning to display the works. The effect of such actions against what are often short-term displays would be catastrophic and could lead such institutions to avoid such exhibitions altogether. These are examples of the situations that could arise, although there may not be problems in individual cases. Where the institution purchases the item directly from the rights holder, there should be no problem.

The Bill will provide that, for the avoidance of doubt, no infringement of a right created by this Part of the Copyright and Related Rights Act 2000 in regard to an artistic or literary work occurs by reason of the placing on display the work, or a copy thereof, in a place or premises to which members of the public have access. We do not seek to change the current position. I commend the Bill to the House.