David Norris (Independent) | Oireachtas source

I move amendment No. 6:

In page 32, between lines 20 and 21, to insert the following:

“CHAPTER 5

Fair dealing

45. (1) Section 49 of the Principal Act is amended by inserting the following subsection after subsection (1):

“(2) In this Part, ‘lawful user’ means a person who, whether under a licence to undertake any act restricted by the copyright in the work or otherwise, has a right to use the work, and ‘lawful use’ shall be construed accordingly.”.

(2) Section 50 of the Principal Act is amended, in subsection (4), by substituting “includes” for “means”.

(3) The Principal Act is amended by inserting the following section after section 50:

“Fair dealing - public lectures in educational establishments

50A.(1) Without prejudice to the generality of section 50(1), the brief and limited display of a copy of a work—

(a) during the course of a public lecture given in an educational establishment,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 50(1).

(2) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(4) The Principal Act is amended by inserting the following sections after section 106:

“Fair dealing - format-shifting for private use

106A.(1)Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if—

(a) the owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format,

(b) he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced,

(c) the reproduction is made for his or her private and domestic use,

and

(d) the reproduction is made for purposes that are neither directly nor indirectly commercial.

(2) Subsection (1) shall not apply if—

(a) the work being reproduced is an infringing copy, and

(b) the person making the reproduction did not have reasonable grounds to believe that the work was not an infringing copy.

(3) Where a reproduction which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.

(4) For the avoidance of doubt, subsection (3) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.

(5) Subsection (1) does not apply if the owner or lawful user of the work from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(6) Without prejudice to section 2, for the purposes of subsection (1)(a), ‘work’—

(a) includes a work which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and

(b) does not include a work which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(7) It is not an infringement of any moral right conferred by Chapter 7 of Part II to do anything which by virtue of this section is not an infringement of an infringement of the rights conferred by this Part.

Fair dealing - back-up copies

106B.(1)(a) Without prejudice to the generality of section 50(1), it shall constitute fair dealing with a work for the purposes of section 50(1) if the owner or lawful user of the work makes or causes to be made a reproduction of the work as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.

(b) In particular, it is not an infringement if the reproduction is made as a back-up copy in case the work is lost, damaged or otherwise rendered unusable.

(2) Subsection (1) shall apply only if the owner or lawful user of the work being reproduced owns or is authorised to use the medium or device on which the reproduction is reproduced.

(3) Subsection (1) shall not apply if—

(a) the work being reproduced is an infringing copy, and

(b) the person making the reproduction did not have reasonable grounds to believe that the work was not an infringing copy.

(4) If the work is lost, damaged or otherwise rendered unusable, then a reproduction made under subsection (1) shall be treated as the work.

(5) Where a reproduction which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.

(6) For the avoidance of doubt, subsection (5) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.

(7) Subsection (1) does not apply if the owner or lawful user of the work from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(8) Without prejudice to section 2, for the purposes of subsection (1)(a), ‘work’—

(a) includes a work which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and

(b) does not include a work which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(9) It is not an infringement of any moral right conferred by Chapter 7 of Part II to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(5) Section 220 of the Principal Act is amended—

(a) by designating the existing section as subsection (1), and

(b) by adding the following subsection:

“(2) In this Part, ‘lawful user’ means a person who, whether under a licence to undertake any act restricted by recording rights in relation to a performance or otherwise, has a right to use the recording of a performance, and ‘lawful use’ shall be construed accordingly.”.

(6) The Principal Act is amended by inserting the following section after section 221:

“Fair dealing - public lectures in educational establishments, libraries and archives

221A.(1)Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—

(a) during the course of a public lecture given in an educational establishment,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 221(1).

(2) Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—

(a) either—

(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive, or

(ii) during the course of a public lecture given in a prescribed library or prescribed archive or given by the librarian or archivist of a prescribed library or prescribed archive,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 50(1).

(3) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(7) The Principal Act is amended by inserting the following sections after section 254:

“Fair dealing - format-shifting for private use

254A.(1)Without prejudice to the generality of section 221(1), it shall constitute fair dealing with a recording of a performance for the purposes of section 221(1) if—

(a) the owner or lawful user of the recording makes or causes to be made a reproduction of that recording in a different format,

(b) he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced,

(c) the reproduction is made for his or her private and domestic use, and

(d) the reproduction is made for purposes that are neither directly nor indirectly commercial.

(2) Subsection (1) shall not apply if—

(a) the recording being reproduced is an infringement of the rights conferred by this Part, and

(b) the person making the reproduction or causing it to be made did not have reasonable grounds to believe that the recording was not such an infringement.

(3) Where a reproduction which would otherwise be an illicit recording is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

(4) For the avoidance of doubt, subsection (3) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.

(5) Subsection (1) does not apply if the owner or lawful user of the recording of a performance from which the reproduction was made disposes of, gives away, rents, or sells that work to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(6) Without prejudice to sections 2 and 202, for the purposes of subsection (1)(a), ‘recording of a performance’—

(a) includes a recording which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and

(b) does not include a recording which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(7) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.

Fair dealing - back-up copies

254B.(1)(a) Without prejudice to the generality of sections 221(1) and 242, it shall constitute fair dealing with a recording of a performance for the purposes of section 221(1) if the owner or lawful user of the recording makes or causes to be made a reproduction of that recording as a back-up copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.

(b) In particular, it shall constitute fair dealing for the purposes of section 221(1) if the reproduction is made as a back-up copy in case the recording is lost, damaged or otherwise rendered unusable.

(2) Subsection (1) shall apply only if the owner or lawful user of the recording being reproduced owns or is authorised to use the medium or device on which the reproduction is reproduced.

(3) Subsection (1) shall not apply if—

(a) the recording being reproduced is an infringement of the rights conferred by this Part, and

(b) the person making the reproduction or causing it to be made did not have reasonable grounds to believe that the recording was not such an infringement.

(4) If the recording is lost, damaged or otherwise rendered unusable, then a reproduction made under subsection (1) shall be treated as the recording.

(5) Where a reproduction which would otherwise be an illicit recording is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

(6) For the avoidance of doubt, subsection (5) does not apply to a loan of the reproduction by the lender to a member of the lender’s family or household for the member’s private and domestic use.

(7) Subsection (1) does not apply if the owner or lawful user of the recording from which the reproduction was made disposes of, gives away, rents, or sells that recording to another person without first destroying all reproductions of that work which he or she has made under that subsection.

(8) Without prejudice to sections 2 and 202, for the purposes of subsection (1)(a), ‘recording of a performance’—

(a) includes a recording which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)), and

(b) does not include a recording which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the work.

(9) It is not an infringement of any moral right conferred by Part IV to do anything which by virtue of this section is not an infringement of the rights conferred by this Part.”.

(8) Section 329 of the Principal Act is amended, in subsection (2), by substituting “includes” for “means”.”.

It will take some time to deal with these amendments because the three being taken together extend to ten or 12 pages. They form the core of the Bill.

Subsection (1) of the proposed new section deals with fair dealing and defines a lawful user. In other words, the person who has the right to use material and copy it. The concept of fair dealing is fairly universal. Even in the fairly restrictive area of print copyright, there is the concept of fair usage, that one can, for example, for scholarly purposes quote a certain section of a work but that section is limited by common sense and one can go to court for a ruling. One cannot quote an entire novel to illustrate a point in a lecture but one can quote a few sentences from it. There is that exception. It is rather different. Fair dealing in literary works really means the amount that one can quote. Subsection (1) states, "In this part, ‘a lawful user’ means a person who, whether under a licence to undertake any act restricted by the copyright in the work or otherwise, has a right to use the work, and ‘ lawful use’ shall be construed accordingly.”

Subsection (3) deals with fair dealing in terms of public lectures in educational establishments. We had some discussion on that in dealing with amendment No. 3, which covered the situation in libraries. Subsection (3) states, "Without prejudice ... the brief and limited display of a ... work .. during the course of a public lecture given in an educational establishment ...". For example, a lecture could be given in which slides of a work of art that may be under copyright, slides of literary manuscripts or slides of the history of fashion could be shown but in a limited way. That comes under the idea of fair usage. During a public lecture in an educational establishment if a slide is shown, for example, that is relevant to the lecture, that is not an infringement. Subsection (3) also states that the display of a copy of a work has to be “undertaken for the sole purpose of education, teaching, research or private study ... accompanied by a sufficient acknowledgement [and] shall constitute fair dealing with the work for the purposes of section 50 ...”.

Subsection (4) deals with format-shifting, which is a type of downloading, and this is downloading for private use. The subsection states:

... Without prejudice to the generality of section 50(1), it shall constitute dealing with a work for the purposes of section 50(1) if-(a) The owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format ...

In other words, he or she already owns the material in a particular format and he or she is just changing the format, presumably electronically. That seems to be pretty reasonable. If one already owns a copy of the material, why should one not make a copy of it as long as it is for private use and not for sale and there is no commercial advantage involved in it? The phrase "he or she owns or is a lawful user of the medium or device on which the reproduction is reproduced [limitations are included] ... the reproduction is made for his or her private and domestic use ..." is also used in the subsection. That is a severe limitation. That rules out any kind of pirating or unlawful reproduction. The subsection further states: "the reproduction is made for purposes that are neither directly nor indirectly commercial." In other words, there should be no profit or financial gain from this process of copying. The subsection further states:

(2) Subsection (1) shall not apply if-

(a) the work being reproduced in an infringing copy [it gets rather technical here about what is or is not an infringing copy] ...

(3) Where a reproduction which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy ...

In other words, all the descendants of an infringing copy are also infringing copies. That is intended to limit access to an illegal market, a black market, in, for example, CDs, tapes or videos that were manufactured on a large scale by commercial enterprises.

Subsection (4) also deals with fair dealing in terms of back-up copies. The creation of such copies in this context is obvious because material can often be damaged. Material can be lost on computer. I do not use computers. I do not understand anything about them and I do not want to but I know people frequently suffer a loss of material from their computers due to an electrical surge, or their computer is stolen, or somebody fiddles with the keys and suddenly memory is wiped of the computer and one is left with nothing. In those circumstances not only should it be lawful but it should be required that copies are kept in order that valuable material is not lost. The subsection further states, “In particular, it is not an infringement if the reproduction is made as a back-up copy in case the work is lost, damaged or otherwise rendered ... [inaccessible]”. I cannot see any argument against that. We are dependent on having access to these kinds of copies.

Subsection (6) deals with fair dealing – public lectures in educational establishments, libraries and archives, which relates to the subject of amendment No. 3. It states:

(1)Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—(a) during the course of a public lecture given in an educational establishment,

(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and

(c) accompanied by a sufficient acknowledgement, shall constitute fair dealing with the work for the purposes of section 221(1).

That is perfect common sense and I do not see how anyone could object to it. Perhaps the Minister of State will come up with an objection or he will say it is already covered in another section. It is a perfectly sensible amendment and it continues:

Without prejudice to the generality of section 221(1), the brief and limited display of a recording of a performance—

(a) either—

(i) in a prescribed library or prescribed archive or by the librarian or archivist of a prescribed library or prescribed archive,

The words “in a prescribed library” are important and mean that it becomes lawful in that particular space. It is then extended by the reference to the archivist. As I understand it, this means that the archivist can take the material to a town hall, a civic group or a community group and it does not have to be physically in the particular library. He or she can give the same lecture and show the same slides or reproduce the same music without infringing copyright. The right to use the material resides not just in a location but in the personnel also. It has, of course, to be taken for the sole purpose of education.

The amendment also deals with fair dealing and format-shifting for private use and states:

Without prejudice to the generality of section 50(1), it shall constitute

fair dealing with a work for the purposes of section 50(1) if—

(a) the owner or lawful user of the work makes or causes to be made a reproduction of that work in a different format,

This also seems to be reasonable as one is just changing the format. I am not terribly well acquainted with matters of this nature but I assume it means taking something one has on one’s telephone and transferring it to one’s computer. It is moving from one medium, or one electronic device, to another if the person owns or is the lawful user of the medium or the device on which the reproduction is produced. It has to be the owner of the recording and the owner of the device on which the reproduction is made. It requires that the reproduction is made for his or her private or domestic use and that the reproduction is made for purposes that are neither directly or indirectly commercial. That also is very clear. Subsection (3) states:

Where a reproduction which would otherwise be an illicit recording is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

This appears to be directed at pirating. In other words, if a person has an illicit recording and makes a further recording from the illegal copy, those copies are also illegal and cannot be commercially distributed or sold. That is also perfectly reasonable.

The next area is fair dealing and back-up copies. I have already said what I need to say about that. It is very important to have back-up copies because they are an insurance against the loss of intellectually valuable material.

Amendments Nos. 7 and 8 deal with the right to fair compensation. Amendment No. 7 states, "The owners of rights conferred by this Part are entitled to receive fair compensation from manufacturers and importers of blank recording media to compensate the said rightsowners fairly for harm done to them by the use made of their works pursuant to sections 106A and 106B." I find this interesting and the Minister might comment on the question of putting a levy on blank copies before there has been any re-recording of the material. The company involved pays a levy on 25,000 blank CDs or tapes and the money is given to the people whose work is used. It also states, "The right to fair compensation conferred by this section shall not be waived by the rightsowner, and such a rightsowner shall not assign the right to fair compensation except to a collecting society for the purpose of enabling the collecting society to exercise that right on behalf of the rightsowner." I would have thought the creators of music, song, verse and so on would be interested in getting fair compensation but the impression I have got from discussions with them, and in this House, is that the artists are not pushing for this. Perhaps the Minister can give a reason for what is proposed because I am rather surprised by it. The amendment also states that they have the right to pass on their proprietary rights to this material in a will. I would be grateful if the Minister would talk about a blank recording medium.

The next subsection reads:

(3) No levy shall be payable pursuant to subsection (1) where—

(a) it is a term of the sale of the blank recording medium that the medium is to be exported from the State, and it is exported from

State,

That is fairly obvious. If it is only in transit through the State and there is no possibility of a recording being made of the material, there is no reason why a levy should be paid. It continues:

(b) the manufacturer or importer of a blank recording medium sells it either to a designated body as defined in section 104(3) or to a purchaser who is purchasing it in the course of a business.

There is then a requirement for the collecting agencies to keep accounts properly and to make them available. The next proposed new section deals with levies to fund the right to fair compensation.

Amendment No. 8 refers to the register of copyright collecting societies. If we are going to have people collecting money on behalf of artists, we need to know who they are. They need to be officially established and registered so this is very important. It also deals with the notification of levies, the validity of certificates and the obligation of collecting societies to register. Chapter 8A deals with the registration of collecting societies for performers' property rights.

I want to mention a couple of cases from Europe which I think are helpful for the purposes of understanding the debate. I am relying on a note I received from the advisers to the Minister. The first is Hewlett-Packard Belgium SPRL v. Reprobel SCRL, case C-572/13. This was litigation between the enormous computing company, Hewlett-Packard, and a Belgian collective management rights association that was operating on behalf of the artist, called Reprobel. In 2004, Reprobel informed Hewlett-Packard that the sale of multifunction devices, which allowed copying, entailed payment of a levy and that this payment should apply retrospectively. Subsequent party-to-party discussions did not lead to an agreement and both parties filed legal proceedings before the Brussels Court of First Instance. Reprobel claimed that payment of the remuneration was due pursuant to the royal decree while Hewlett-Packard argued that this remuneration was not due at all, one of the reasons being that the amount Hewlett-Packard had already paid corresponded to the fair compensation owed, pursuant to the Belgian legislation interpreted in light of the InfoSoc directive.

Following a number of claims, counterclaims and issues of compatibility involving Belgian and EU law, the Court of Appeal in Brussels decided to stay the proceedings in order to seek guidance from the European Court of Justice, which it did.The latter gave a ruling on 23 October. The 9th Chamber of the Brussels Court of Appeal referred four questions to the European Court of Justice, one being on the conformity with EU law of the 50:50 author-publisher distribution split, taking into account that the publisher is under no obligation to pay back, even indirectly, a part of the remuneration so received to the author. Another question was to seek guidance on the notion of fair compensation, which is what we are dealing with directly. It pertains to Articles 5.2(a) and 5.2(b) of the 2001/29 directive, querying whether the notion could be interpreted in a different way depending on whether the reproduction on paper is made by "a natural person for personal use, or by any person in general". I take "any person in general" to mean somebody with a commercial interest in the material who is intent on pirating the material. There was a question on the Belgian dual reprography remuneration scheme, including an equipment levy based exclusively on the copying speed of the device having no other link with the possible harm suffered by right holders. Again, it is contentious that one would charge somebody simply on the basis that he or she has the potential to reproduce material at a particularly high speed. He or she may never do it. I am just curious about that.

The most important part of the judgment is that "fair compensation is intended to compensate actual harm caused to right holders, resulting from the reproduction of their work without their authorisation, and must therefore be calculated proportionately to that harm."

There is just one other case I want to mention. The British introduced, in 2014, a copying exemption without a levy. This allowed people to make private copies of legally acquired content. It would have allowed consumers to transfer the content of their own CDs to an MP3 player, for example, but would not have allowed people to make copies and give them to others. The judgment covered three issues. Should the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 be quashed? The court ruled that the UK private copying exception was quashed. The legislation that was passed allowing the exemptions without a levy was quashed by the European court. Should there be a reference to the European court? As the legislation was quashed, it was decided there was not to be one. We, therefore, have an interesting case of a neighbouring government introducing in very recent years an exemption for private use that was quashed by the European court. These are the limits within which the tailoring of Irish law has to take place.

As a result of the discussions I had, which were helpful, it became clear that this was not a case of Ireland acting in isolation. We had relations with, and obligations to, other countries. We had treaties and legal arrangements with other countries. Overall, we had the European Union and its courts of justice and so on. Therefore, we were not tailoring a Bill in isolation. It was not as if we had a blank page and could do for Ireland whatever we wanted. There are constraints imposed by our entanglements with other states.

I am afraid I was rather long-winded. The three amendments cover approximately 14 or 15 pages so I hope I will be excused on that score. I hope I have not been too rambling.