Seanad debates

Wednesday, 7 November 2018

Copyright and Other Intellectual Property Law Provisions Bill 2018: Committee Stage (Resumed)

 

10:30 am

Photo of Ivana BacikIvana Bacik (Independent) | Oireachtas source

For writing them and for his immense help in explaining them to us. I thank the officials for meeting us to go through the substance of these amendments. Both Senator Warfield and I were very impressed by their expertise and depth of knowledge in what is, as Senator Norris and others have said, such a technical area.

Amendments Nos. 6 to 8, inclusive, essentially deal with the substantial issues of fair dealing and fair compensation and, in addition, seek to cover specifically public lectures in educational establishments. Let me deal with public lectures in educational establishments first. We are told this is not something that is specifically covered elsewhere, yet it is clearly an area in which an exception should be made. I realise the issue is implied. We discussed this earlier. The Minister of State will probably respond by saying this is covered elsewhere. Section 18, which inserts a new section 69A into the Principal Act, provides for public lectures given in prescribed libraries or archives, "undertaken for the sole purpose of education, teaching, research or private study". It may be that educational establishments are implied in that but we believe it should be made explicit. I referred on the previous occasion to an amendment to section 18(2)(a)(ii) to include "or an educational institution" where a prescribed library or prescribed archive is currently provided. That might be a way of dealing with it. When we canvassed on this at the briefing with the officials, we were told educational institutions are dealt with separately. It does not seem, however, that they are explicitly covered. Amendments Nos. 6 to 8, inclusive, deal specifically with public lectures in educational establishments. That is one discrete issue.

The other more substantial issue is a fair dealing exemption. I refer to user rights. These and fair compensation were dealt with in the report on modernising copyright to which we have referred. This report, which was published in 2013, provided specifically for exceptions to normal copyright law to enable user rights on the basis that consumers now commonly assume that if they buy content for personal use, they should be able to access it in different formats and on multiple devices, and they should be able to back it up. Many consumers routinely copy content and make backups believing it is legally permitted. Currently, it is an infringement of copyright to shift formats or make backups. It would be assumed, therefore, that any reforming copyright law would change that to ensure fair use by consumers is not a breach of copyright law. These are well-established practices. Failure to acknowledge this reality, as Professor O'Dell has suggested, would diminish respect for the system of copyright and undermine the credibility of copyright legislation. We certainly discussed this at the briefing with officials. It does not seem to me to be good law to reform copyright without acknowledging the reality of use by consumers in a non-commercial environment, which should not amount to a breach of copyright law. The European directive enables us to create the exceptions that our amendments propose. I refer specifically to amendment No. 6. We are proposing that private copying exceptions to enable format shifting and backing up should be introduced, subject, of course, to a system of levies for fair compensation, as the EU directive requires.

I understand these recommendations, which were in the 2013 report, were not included in the Bill due to a political decision taken not to proceed with the exceptions for user rights. It may well be that rights holders were not looking for a levy system, that it was not something raised with the Minister by stakeholders, and that it, therefore, appeared there was a lack of demand for the sorts of exceptions we are seeking to provide in our amendments. I anticipate that the Minister of State will say there is concern that the cost of creating the exceptions together with the levy scheme we are seeking in amendment No. 7 might be passed on to consumers. However, we are entitled to say there would be other ways of paying for the levy scheme. I am grateful to those who briefed us and who told us that 22 EU jurisdictions have a levy system in place to allow for the sorts of user exceptions we are talking about for fair dealing. While each levy system is different, significant costs are not always passed on to the consumer. It certainly seemed to us, and also Senator Warfield, that it might be possible to create a scheme whereby the cost would be borne by device manufacturers, as it is by photocopier manufacturers, for example. Thus, manufacturers of devices, such as Apple, would be able to absorb any costs from a minimal levy scheme to ensure a private user exemption would be built in, thus allowing good law whereby people who deal fairly as consumers by backing up legally purchased material would no longer infringe the law.It may be that the prospects of any enforcement of the law are minimal. That is something I anticipate the Minister of State might say but it is not good law. It undermines respect for law if we continue on the assumption that nobody will be prosecuted or no proceedings will be taken against people in civil courts for doing something that is in fact an infringement of copyright, even though nobody knows it is and everyone assumes it is not. It seems strange that we are debating a law that is supposed to be reforming, updating and modernising copyright law without taking account of the reality that, however minimal the possibility, people might well be subject to legal proceedings because they are in fact breaching copyright through doing something in good faith and that we all do all the time. It seems particularly bizarre that we are doing that when in fact there are levy schemes in place in other jurisdictions and they are legally possible under the directive.

The UK scheme was quashed but we have been told there are other ways of providing for levy schemes. It may be that improvements could be made to our amendments but the point we are making is that in principle there should be exemptions for fair dealing by consumers coupled with a fair compensation scheme. That is the substance of what we are seeking to do in amendments Nos. 6, 7 and 8, where we provide for a registered copyright collecting society. Amendments Nos. 6 and 7 are the crucial amendments. I look forward to hearing the Minister of State's response to this. There is a matter of principle here that, whatever stakeholders, copyright management organisations and others may have sought, may not have been a priority for them. We are trying to represent as the views of the ordinary consumer who should be entitled to carry out good-faith practices of copying, backup and format shifting without being subject to any legal consequence. That is the crux of what we are seeking to do in these amendments. That is also what the Modernising Copyright report sought to do in 2013. We are trying to take on board its recommendations and put them into law. That is the purpose of these amendments.

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