Damien English (Meath West, Fine Gael) | Oireachtas source

On behalf of the Minister of State, Deputy John Halligan, I am pleased to present the Copyright and Other Intellectual Property Law Provisions Bill 2018 to this House for consideration. The Bill completed its passage through the Lower House in July with broad support, following positive and constructive engagement with Deputies. Officials of the Department of Business, Enterprise and Innovation will be happy in the next few weeks to engage with Senators who have questions about the Bill or require clarification on any of its provisions.

The Bill is aimed at overcoming barriers to innovation and modernising the existing copyright regime for the digital age. It is not to be confused with the ongoing negotiations in Brussels on a proposal for a copyright directive. If that proposal is agreed to, separate transposing legislation will be required in Ireland in due course.

The Bill is the result of detailed analysis and examination, both from a legal and a policy perspective, of the recommendations contained in the copyright review committee’s 2013 report entitled, Modernising Copyright. The regulatory impact assessment which is available on the website of the Department of Business, Enterprise and Innovation, outlines why certain recommendations were not implemented. It was due mainly to legal conflicts with existing EU law, the significant costs involved, the resulting administrative burden that could arise from implementation, or the lack of sufficient evidence supporting certain recommendations.

Owing to the diversity of the Seanad, many in this House will be aware of copyright. As a result, I expect to see interest in the Bill. The overall aim of the Department of Business, Enterprise and Innovation on copyright matters in the Bill and in general is always to find the best balance between the rights of right holders in respect of their creative endeavours, the desire of consumers to access that creative content and those intermediaries who facilitate that access and ensure right holders are suitably remunerated for their rights.

Turning to the Bill, as it is quite detailed legislation, with a substantial number of sections, I do not propose to address each of them but will instead outline the main provisions. I can, of course, provide additional detail on any aspect, if required. The Minister of State, Deputy John Halligan, and his officials will be available in the coming weeks to clarify any piece of information or go into more detail, if need be.

The Bill amends several existing definitions contained in the Copyright and Related Rights Act 2000, as amended, and provides for the inclusion of five new definitions, which is important to consider when reading the Bill. The Bill introduces the following changes to copyright law in Ireland. Section 4 renames the Controller of Patents, Designs and Trade Marks as the Controller of Intellectual Property. Subsequent amendments in sections 40 to 42, inclusive, carry this change across the other intellectual property Acts, namely, the Copyright and Related Rights Act, 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 full breadth of the role of both the controller and the office across all intellectual property in Ireland, as well as the more standardised naming convention for such offices across the European Union.

The Bill improves access to the courts system for intellectual property infringement claims, particularly for lower value cases of intellectual property infringements. This is achieved in section 5 by extending the jurisdiction of the Circuit Court and the District Court to hear intellectual property claims, permitting right holders to bring lower value intellectual property infringement claims for relief in civil proceedings within the limits of these courts. The provision will improve possibilities for 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. In sections 38 and 39 relevant amendments are also included to the Courts of Justice Act 1924 in respect of the jurisdiction of the District Court and to the Courts (Supplemental Provisions) Act 1961 in respect of the jurisdiction of the Circuit Court to ensure the rules of the court allow such cases to enter the lower courts. Later sections of the Bill, namely, sections 46 to 79, inclusive, and 82 to 104, inclusive, make the necessary amendments to the Patents Act 1992 and the Trade Marks Act 1996, respectively, which amend references to "the Court" to show whether the matters relevant to each section should be referred to the High Court or the "appropriate court" in those Acts.

The introduction of a text and data mining copyright exception is provided for in sections 13 and 29. Text and data mining 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 exception will be of particular importance to the research and scientific community and in the context of big data projects which rely on underlying data analytics to produce new results and uses for the results.

The Bill extends the existing copyright exceptions for education and research into Irish law as proposed by the copyright review committee. Several sections amend the Copyright and Related Rights Act, namely, sections 14, 28, 29, 43 and Schedule 1, expanding the existing provisions on exceptions to copyright and related rights for the purposes of education. The 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 the information society directive, Directive 2001/29/EC. The exceptions contained in the directive allow for the use of copyrighted works without the express authorisation of the right holder and the need to compensate the author. The Bill also includes protection for right holders 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 right holders’ commercial objectives.

Section 27 contains a modest amendment to the Copyright and Related Rights Act that broadens the copyright deposit system, enabling copyright deposit institutions to accept published material in digital format, as well as or instead of physical copies. This allows 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.

A disability exception, originally proposed by the copyright review committee, is contained in the Bill. The definition of disability is amended and updated to the meaning assigned under section 2 of the Disability Act 2005. The amendment is of importance as the Bill expands the existing exception to copyright for the benefit of persons with any disability in sections 24 to 26, inclusive. The provisions 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. Currently, designated bodies that represent the interests of persons with a disability 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 and organisations. The amendments allow designated bodies to create multiple copies to have available for the needs of disabled persons and facilitate transmission of these 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 which 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 the modified work for use by persons with a disability. Given advances in technology, it may also be possible for persons with a disability to undertake necessary modifications 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 which is 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 the bodies to make suitable modified copies available for persons with a disability.

The Bill amends the Patents Act 1992 to take account of two technical issues that have arisen from the Knowledge Development Box (Certification of Inventions) Act 2017. Section 40 of the Bill which provides for the opening up of the national route for Patent Cooperation Treaty, PCT, international applications was amended on Committee Stage in Dáil Éireann. The amendments are extremely technical in nature and were necessary to ensure there were no unintended consequences as a result of the changes to the Patents Act 1992.The purpose of section 127A is to open the national route for PCI applications by allowing patent applicants to choose to convert an international patent application into a national patent application. This ensures that the applicant in not required to lose his international application; he can choose the national route of his own volition.

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 (Certification of Inventions) 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 through section 40 of this Bill.

There are a few technical amendments. While the Bill implements many of the recommendations of the "Modernising Copyright" report, it also makes other technical amendments to the copyright regime. Section 6 clarifies that the authorship of a soundtrack accompanying a film shall be treated as part of the film. Section 7 clarifies that perpetual copyright does not exist in certain unpublished works. Section 9 provides a 25-year term of protection for previously unpublished works. This is subject to first obtaining the consent of the owner of the work. Section 10 makes it an infringement, in the context of photographs, to tamper with metadata associated with the photographic works. This will allow for better protection of photographs, particularly in online use. Sections 10 and 32 to 36, inclusive, strengthen the provisions on rights protection measures, including extending the protection of rights protection measures to being a matter for civil infringement proceedings taken by a rightsholder or licensee as well as a matter for criminal infringement proceedings. Section 23 clarifies the rights of a person acting on behalf of a broadcaster with regard to the copying of a work by 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. Section 37 clarifies the duration of copyright in works provided for in paragraph 9(1) of the First Schedule of the Copyright and Related Rights Act by the inclusion of additional text.

There are also provisions to correct an oversight at the time of the euro changeover. These result in a technical amendment to each of the thee older intellectual property Acts already in force - the Copyright and Related Rights Act, the Patents Act 1992 and the Trade Marks Act 1996 - 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. These provisions are found in sections 44, 80 and 105 and Schedules 2, 3 and 4 of the Bill.

In respect of the term of protection for copyright in designs, the Bill repeals sections 31A and 78B of the Copyright and Related Rights Act which relate to the existing 25-year term of copyright protection for designs and artistic works under the Industrial Designs Act 2001. New provisions bring these works under the standard copyright term of protection being made in sections 8 and 20. The current 25-year term of copyright protection for designs and artistic works conflicts with the standard copyright term of protection that applied to artistic works, which lasts for the life of the creator and a further 70 years. Following a ruling in a case before the Court of Justice of the EU, 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. In order 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 off existing stock that would not comply with the amended provisions.

There are also exceptions permitted by the EU information society directive. This Bill implements several such optional exceptions. These include extending the concept of fair dealing in copyright works for purposes of news reporting in sections 11 and 21; creating an exception to copyright for use of copyright works to allow for caricature, satire and parody in section 12; 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 in sections 15 to 19, inclusive, 31 and 32; and expanding the exception to allow bodies to produce a copy of a work for the advertisement of a public exhibition, as well as for the sale of an artistic work in section 22.

I would like to inform this House that during the Bill’s passage in Dáil Éireann a Government amendment was accepted which amended text at section 40. In addition, one Opposition amendment was proposed, which the Minister of State, Deputy Halligan, was happy to accept, which resulted in the addition of a new section 106 that requires the Government to issue a report within 12 months of enactment on the feasibility of establishing a digital legal deposit scheme to allow for the copying and archiving of material on .ie domains on the Internet. I am pleased to commend this Bill to the House on behalf of the Minister of State who, again, apologises that he could not be here today due to an issue that came up. He certainly looks forward with interest to the contributions of Members on this and subsequent Stages of the Bill in this House. He and his team are available before Committee Stage and later Stages to go through any issues Senators might have over the weeks ahead.