John Halligan (Waterford, Independent) | Oireachtas source

I thank the Senators for their close analysis of a very complicated Bill. I will do my best to go through it as much as I can. The private copying exception contained in section 45, alongside the proposed sections 46 and 47 are a set of far-reaching proposals, the subject of which has already been considered in depth by the Department and rejected by Government. The Copyright Review Committee's, CRC, report in 2013 recommended the introduction of a private copying exception which would be framed for private and domestic uses and would cover reproduction on paper for private use, format shifting and reproductions for backup copies.

The amendments put forward by the Senators, to sections 45, 46 and 47, reflecting this proposed exception, proceed to include an accompanying proposal to introduce copyright levies, and in addition seek to establish copyright collecting societies to collect and redistribute these levies to rights holders. These three proposals are necessarily linked and I cannot accept any of them. The Department is of the view that levies are essentially a tax on consumers and that their introduction would impose unnecessary additional costs on consumers. While the proposed amendment as drafted would place the burden on businesses to pay levies, it is inevitable that these costs would be passed on to consumers, including business consumers, when they purchase material for the purpose of copying or facilitating copying, regardless of the use for which it is intended. This view is supported by the Controller of Patents, Designs and Trade Marks. The view of the Copyright Review Committee in 2013 which is precisely aligned with that of the UK was "that such levies are a blunt instrument that would amount to a tax on innovation". While the way the proposed amendments are drafted would place the burden on businesses to pay levies it is inevitable that these costs would be passed on to consumers, including business consumers, when they purchase material for the purpose of copying or facilitating copying, regardless of the use for which it is intended. In addition, my Department has not received a significant number of submissions from right holders calling for the introduction of levies, either during our engagement with them since the publication of the CRC report in 2013 or since publication of the Bill earlier this year, that is, from the very people who it is purported will benefit the most from these amendments.

Furthermore, evidence from other member states indicates that there would likely be very little additional revenue and that, due to the increased administrative burden placed on collecting societies, this could potentially result in right holders receiving less remuneration and possibly a net loss to collecting societies which must be compensated for through their remuneration pool. We have also not received any engagement from stakeholders on this matter providing evidence of the harm caused to right holders by private copying to justify increasing costs to Irish consumers. Further to this, there has been no analysis of what goods would have levies added to them, or how much these levies should cost. While the proposal refers to a "blank recording medium" which emphasises the copying of a "recording", the open-ended use of the term "work" in the proposed section 106A included in this amendment would make this insufficient.

There are also concerns that the term "blank recording media", contained in the proposed text, is ambiguous when read in context with the "works" that can be copied. This term would need to be expanded to include all means of copying of works to ensure that Ireland complies with its EU obligations. This would have the effect of levies being placed not only on blank CDs, but potentially also on other devices capable of copying, for example, phones, laptops, electronic notebooks, photocopiers etc. That is important. Therefore, these levies would have an impact on everyone from the ordinary person to schools, small and large businesses and so on. Furthermore, this also imposes a cost on all users of blank recording media where the exception to allow copying is limited to "private and domestic use". With regard to the proposed introduction of a private copying exception, I would like to assure the Senators that the Department considered this recommendation carefully and undertook the requisite scrutiny in its analysis of the recommendations of the Copyright Review Committee. Ultimately it was decided not to progress this recommendation and that decision was endorsed by the Government when it approved the draft heads of this Bill. As part of its analysis, the Department examined the amendment to the UK's copyright law that took place in 2014.