John Halligan (Waterford, Independent) | Oireachtas source

I would please. I thank all of the Senators for their amendments. Senator Bacik, if I am not wrong, spoke about amendments Nos. 6 and 8. We might talk about those later. I will concentrate first on amendments Nos. 1 and 3 to 5, inclusive. I will not be accepting amendments Nos. 1 and 3 as provision has already been made elsewhere in the Bill and I will go to through that as comprehensively as I can. It is a complicated and technical Bill. I will also not be accepting amendments Nos. 4 and 5 because that would result, as we have been advised, in a measure which is not legally sound because it does not have sufficient certainty.

Amendments Nos. 1 and 3 propose the inclusion of additional wording. This would provide that educational establishments will not be liable for copyright infringement if they make a copy or a communication of a work or a performance for the sole purpose of illustration for education, teaching or scientific research or the preparation for education, teaching, or scientific research. It is not required. On amendment No. 1, section 18 relates solely to fair dealing in copyright works for libraries and archives. It proceeds to outline the various exceptions applicable in that area. The exception sought by the Senators is already provided for in the Bill in section 14, which amends section 57 of the Copyright and Related Rights Act 2000. That is in regard to illustration for education, teaching or scientific research. It provides for an exception for the use of copyright works in illustrating for education, teaching and scientific research.

On amendment No. 3, the section it relates to, section 28, relates solely to fair dealing and performance for libraries and archives and proceeds to outline the various exceptions applicable in that area. The exception sought by the Senators is to amend section 28 of the Bill by replacing subsection 3 of section 221 of the Copyright and Related Rights Act 2000 to ensure that educational establishments, libraries and archives will not be liable for copyright infringement if such bodies make use of the performance as long as the interests of the rights owner are not affected and where use is accompanied by sufficient acknowledgement. It is not proposed to accept the amendment because section 28 relates solely to fair dealing for performance for libraries and archives. The exception for performance in education sought by the Senators is already provided in section 29 of the Bill through the inclusion of new sections 225B, 225C and 225D in the Copyright and Related Rights Act 2000. The exception for libraries and archives is provided for in section 31 of the Bill which creates a new section 235A in the in the Copyright and Related Rights Act 2000.Both of the exceptions, already included in the Bill, provide that it is not a copyright infringement to make a copy of a communication of a copyright work or performance for the sole purpose of illustration for education, teaching or scientific research or for the preparation for education, teaching or scientific research. This would include being used as part of a lecture in an educational institution. Sections 14, 29 and 31 clearly meet the objectives of the Senators, namely, to permit the use of works while providing education and I respectfully request that amendments Nos. 1 and 3 be withdrawn.

I will discuss amendments Nos. 4 and 5 put forward by the Senators, which propose the deletion of the word "means" and replacing it with the word "includes" in two different sections. Section 28 of the Bill, which amends section 221 of the Copyright and Related Rights Act 2000, and section 37 of the Bill, which amends both sections 54 and 329(2) of the Copyright and Related Rights Act 2000. The proposed amendment would have the effect of broadening the scope of the exception on fair dealing with a copyright protected work that is provided for already in section 54 of the Copyright and Related Rights Act, fair dealing with a copyright protected performance in section 221 of the Copyright and Related Rights Act, and fair dealing with a copyright protected database in section 392(2) of the Copyright and Related Rights Act 2000.

During extensive legal drafting of the Bill, the Department consulted the Office of the Parliamentary Counsel, OPC, and discussed at length the wording in the Bill to ensure that it is legally sound, including on that precise point. The use of the word "means" in the three sections of the Copyright and Related Rights Act involved provides clarity as to the meaning of fair dealing and ensures that there are boundaries and limits around the use of copy protected works, performances and databases. Changing the word from "means" to "include" would broaden the scope of these fair dealing exceptions and could result in an unintended consequence such as a reduced protection for the rightsholders, and could result in rightsholders, and we are told this legally, challenging the legality of this section of the Bill.

I know this matter is complicated. If Senators would like further meetings to discuss the matter I would be delighted to oblige. I have been given the legal advice that amendment No. 1 is covered. In terms of amendments Nos. 4 and 5, we have been told for legal reasons that it would be unacceptable to accept the amendments.