Alice-Mary Higgins (Independent) | Oireachtas source

I will add to what has been said in terms of the general welcome for the stated intentions of the legislation and to highlight some of the areas of concern, as outlined by my colleague, Senator Black, who has great personal experience in this area and has worked with many performers.

The performers I have spoken to have highlighted their concerns that there could be inadvertent consequences from how the Bill is currently worded, in particular section 2(a) and the proposed subsection (3A). The risk is that we could end up in a scenario where there is a 25% performer outcome rather than 50%. Effectively, the revenues could get split twice – split 50:50 and then split again. What we and the performers are looking for is a copper-fastening of the principle of 50%, except where it has otherwise been agreed by both parties that the assumption should be that 50% of the revenues are for performers, other than in cases of associated documented costs. The core point is the 50:50 piece. Performers point out that where the 50:50 principle is in effect, working and established, the role of the controller becomes more straightforward and should, therefore, be retained.

The other point we have heard from performers, artists and recorded voice performers in general relates to the role of the controller.The controller is somebody who is able to understand, fully implement and, in an independent way, apply those principles in terms of the shares of revenue. Among the points they made is that section 4 of the Bill does not track the many points of attachment in terms of determining the beneficiaries of the right. It was highlighted in the judgment of the Court of Justice of the European Union, CJEU, in September 2020 there is a risk that certain performers could fall through the cracks and be unrecognised and unprotected unless that is addressed and corrected. Similarly they address the issue that if we move things away from the controller to the Circuit Court, it is bringing a much more adversarial, expensive and almost unpredictable set of measures to be applied to disputes. I am aware of an argument that has been made by the Minister of State, Deputy Niamh Smyth, previously. I am looking at a briefing provided by recorded artists, actors and performers. She stated:

The nature of the disputes under section 208 often extends beyond the technical scope ... requiring nuanced assessments of fairness, proportionality and contributions of involved parties.[and that falls outside the expertise of the controller].

However, the counterpoint is that if we have clear legislation that is making it clear in terms of the 50% principle being applied, then we do not have a situation in which it is not really appropriate for the Circuit Court either to be trying to give an assessment of who has given most of a contribution, with the potential variability of that. If we have a controller whose job is literally this, whose focus is in looking to music and acting, to this area of production, they have the expertise for ensuring a consistency of assessment. If they have a clear remit in terms of the 50% rule, we should not be looking to the court, except in very particular circumstances of difficulties in terms of the arbitration assessment or adjudication in relation to the arbitration of disputes around levels of contribution. By having that 50% copper-fastened and by allowing the controller, who has the comparative experience right across the board, is looking at cases like this all the time and is independent, we move towards something that can be functional. The alternative is a situation whereby in order to get their share, people will have to potentially go through the Circuit Court, explain the nature of their work and their contribution and have potentially quite differential determinations being made in that kind of a context. I urge the Minister to make sure that the role of the controller is reasserted, including in relation to section 208 of this legislation and a firming up of the principle in terms of 50% and measures to address concerns that certain kinds of performers may fall through the cracks and may not be captured in the legislation as drafted. I look forward to further engagement on Committee Stage.