Peter Burke (Longford-Westmeath, Fine Gael) | Oireachtas source

I thank the Senators for their remarks, details and concerns on the Bill and also those who have welcomed the Bill. Senator Crowe raised the issue of third countries. One of the findings of the Court of Justice of the European Union in its ruling in the case which gives rise to this Bill is the issue of national treatment, of nationals of countries party to international conventions and the ability of the EU member states to reciprocate when reservations are entered into by a third country. Allow me to explain. Countries that are party to the international copyright conventions agree to treat nationals of countries that are also party to the agreements in the same way as their own standards and nationals. Some countries chose not to apply all or parts of the WIPO performance. As was required, they notified the WIPO that they were entering into a reservation. The other contracting states could respond to this reservation with reciprocal treatment. This is the case notably in the United States. The US has entered a reservation on payment of equitable remuneration to performers for certain types of broadcasting and communication to the public, notably radio. Other countries, including some in the EU, responded to the reservation by treating US performers in the same way as their nationals and other EU rules. As mentioned earlier, the Court of Justice of the European Union found that EU Directive 2006/115 has to be interpreted in light of the Rome Convention and the WPPT. This means that EU member states must ensure that a single equitable remuneration is paid to performers that are party to the WIPO treaty and they may not limit this to nationals of EU or the European Economic Area, as well as the case in Ireland's copyright legislation. However the court also ruled that EU member states do not have the authority to reciprocate reservations made by third countries. This right may also be exercised at EU level and not by individual member states. This is because it is an area of harmonised EU law according to the EU treaties and the EU has an external competence. As a result of part of the ruling, in many member states royalties have now been shared with third-country performers where they were not previously. In some cases, this has reduced royalty payments to EU artists. Ireland was concerned about this issue and we understand that it is affecting Irish artists as well. However, neither Ireland nor any other EU member state can legislate on a unilateral basis as a result of the decision by the CJEU. The European Commission is actively considering the possible solutions on this issue. I understand that a legislative proposal is being prepared to seek to resolve this issue and we hope it will be published by early 2027.

In relation to the dispute that was raised by Senator Conor Murphy, I do not want to comment on issues that are before the courts, but just to say that the committee waived pre-legislative scrutiny and I have no control over that. The members of the committee took that decision themselves.

On the points raised by Senator Black and Senator Higgins in relation to the functions from the Circuit Court, this point was discussed at length in Dáil Éireann, including a detailed discussion on Committee, Report and Final Stages on the amendments tabled to the Bill. As I have mentioned, the Bill will ensure that for the first time the 50:50 share between producers and performers is enshrined in law. While it is up to the parties, including their representative collective management organisations, to come to an agreement, we expect that in the vast majority of cases the 50:50 split will apply. Cases requiring an application to the Circuit Court should therefore only arise in extremely exceptional circumstances.

I want to reiterate the points made earlier and the rationale for this change. Following legal advice, including from the Office of the Attorney General, the Department determined that the reassignment of adjudicative functions under section 208 of the Act from the Controller of Intellectual Property to the court is both appropriate and legally necessary. Disputes arising under section 208 could potentially extend beyond the technical domain of intellectual property law and require the application of equitable principles including fairness, proportionality and the assessment of relative contributions, matters that are currently judicial in their very nature.The controller's statutory role is primarily administrative and technical. It does not encompass the interpretive discretion or legal authority required to adjudicate on issues of equity. These matters fall outside the controller's institutional expertise. The courts possess the requisite legal infrastructure, procedural safeguards and jurisprudential depth to adjudicate on such disputes. They operate well within an established framework of case law and have a long-standing tradition of applying equitable remedies, ensuring consistency, transparency and legal robustness. This reassignment strengthens the legal integrity of the adjudication process, aligns with constitutional principles of fairness and due process and ensures that complex disputes are resolved by a body with an appropriate legal mandate and expertise. It reflects the considered and proportionate response in what is a rarely occurring type of dispute. As was discussed in the Dáil, no referrals were made to the controller under section 205(5) of the Copyright Act since it was enacted back in 2000 until a dispute arose between a performer and the producer representative organisations which gave rise to the court case that was referred to the European Court of Justice, to which this Bill is an attempt to respond.

The Minister of State, Deputy Smyth, will deal with subsequent Stages of this Bill in the House. In response to Senator Black, I assure her that our officials are at her service and are available to help her and any other Members of the House with any aspects of the Bill.