Most people have only the vaguest idea of what copyright is, so let me explain. You can't copyright an idea, or a fact like, say, a car which has been set on fire. But if you write a verbal description, or take a photograph, or paint a picture of that burning car, that expression or record of that fact belongs to you. It is your property, and it cannot be taken from you or copied, or used by someone else for commercial gain, without your express permission, or else remuneration.
That's the law as it stands, in this country and in most other jurisdictions, and indeed in many EU and international treaties going back to the 1948 UN Universal Declaration, which describes copyright as an inalienable human right.
The new Copyright and Related Rights Bill now before the Oireachtas falls far short of defending that human right. It has alarming ramifications for writers, artists and small publishers - "content-providers" of all types because it does not defend them against the interests of broadcasters, media corporations, software giants and newspapers. Nor is it up to speed with the rapid escalation of digital technology and the internet. And it falls short of fulfilling many of our international obligations. O Riada estate successfully sued RTE recently, and painter Graham Knuttel won an injunction against a Dublin shop from selling forged signature prints of his work.
Ireland's current Copyright Act dates from 1963 and is not impressive. By far the most significant ruling arising from the Act has been the Supreme Court's decision of 1995 to allow RTE and a number of discos to play copyrighted music in public, albeit at a cost of royalty payments to Phonographic Performers Ireland (PPI), the collecting agency for record companies. In effect, it allows someone to breach copyright - but in the end the offender will have to pay for it.
The current situation demands better copyright legislation. Ireland is a signatory to many international treaties on copyright: the Berne Convention, the World Trade Organisation (WTO) 1994 Agreement on TRIPS - Trade Related Intellectual Property Settlement; a GATT treaty; two World Intellectual Property Organisations treaties, and three outstanding EU directives on legislating for an information society. Before this new Copyright Bill, Ireland hadn't bothered to ratify any of them with domestic legislation.
Basically, politicians don't see copyright as an issue that would attract votes. So it was only in 1998, when the WTO threatened to take a crushing international legal action against Ireland, that Minister John O'Donoghue slammed through the Intellectual Property (Miscellaneous Provisions) Act, 1998, with its get-tough provisions for penalties of up to £100,000. However, the actual definition of the new copyrights and infringements are only now contained in the new Bill.
In an unprecedented move, the Government published a draft of the Bill in 1998, as they seemed genuinely unsure of the implications of copyright. The Bill went through the Seanad last year, when various lobbying interests were heard through the contributions of Senators. as O Murchu heatedly debated the complex issues behind copyrighting traditional music, while Senator David Norris, who heads of the James Joyce Centre, objected to the Bill's lengthening of copyright protection of authors from 50 to 70 years after their deaths.
In January, it began its long traipse through the Dail Select Committee on Enterprise and Small Business. In one nine-hour session, 17 organisations made submissions to the Committee - including the Artists' Association of Ireland (AAI), Irish Music Rights Organisation (IMRO) and the PPI, plus IMRO/PPI's old adversaries, the Licensed Vintners' Association and the Irish Hoteliers' Association - made submissions to the Committee. Others included RTE, IBEC, the Business Software Alliance, National Newspapers of Ireland, and the Conference of University Heads. Bafflingly, the Arts Council made no submission.
Tom Kitt is the Minister representing the Government on the Committee. Pat Rabbitte is the Labour man, but it is difficult to tie down his thinking on the Bill. More interesting are the informed contributions of Cork Fine Gael TD David Stanton.
Stumped on occasions by Opposition arguments, Kitt has committed himself to looking again at the implications of several sections of the Bill at Report Stage - when they will not have any opportunity to be debated properly, thanks to the time-guillotine in the Dail. Even so, since January, the Committee has only crawled a third of the way through the Bill, and the debate is now held up by the Minimum Pay Bill.
It is indicative of just how ill-understood copyright is that the only significant amendment to the Bill came from the Government, with Opposition support - to exempt televisions and radios in hotel bedrooms from royalties.
Fine Gael TD David Stanton says: "It was decided hotel rooms were now seen as the private residences of paying guests. Otherwise, radios and TVs could have been purged from hotel rooms, or limited to a pay-per-view service."
Another heated debate centred around the lack of provision in the Bill for droit de suite - an artist's right to receive a small percentage of the resale price of his or her work if it is sold on by another party. The Artists' Association of Ireland's director, Stella Coffey, has campaigned for a decade for droit de suite. At Committee Stage last month, the issue even went to a vote.
Tom Kitt has admitted in the Dail that he had been instructed to drop the provision by the Taoiseach. Indeed, the Taoiseach was personally pressed on the matter by Tony Blair, who has crusaded against droit de suite, taking the dubious line of the big auction houses that it would cause huge job losses, by causing art sales to flee to other jurisdictions.
Last Thursday, however, the Council of EU Internal Ministers approved a compromise wording on an EU directive bringing in the droit de suite, which will have to be implemented in five years. Kitt has promised to have a fresh look at the issue, and it may just resurface at Report Stage of the Copyright Bill.
The 1963 Act draws a careful distinction between the absolute, primary copyright of the author of the work and a secondary copyright of the party who makes that work available in a certain form, say in a record, book or newspaper. In the current Bill these have merged into a shared, equal right.
