I welcome the Minister of State, Deputy Christopher O'Sullivan, and his officials from the Department.

I move amendment No. 1:

“Amendment of section 38 of Principal Act

2.Section 38 of the Principal Act is amended by the insertion of the following subsection after subsection (3):

“(3A) Payments made to a licensing body pursuant to subsections (1) and (2) of this section shall be known for the purpose of this section and section 208 as ‘equitable remuneration’. The right to receive the same is a right which is shared between the owner of the sound recording and performers whose performances are incorporated in the sound recording.”.”.

This amendment proposes to amend section 38 of the principal Act, which is the Copyright and Related Rights Act 2000. I will indicate to the House what this is intended to do. This simple amendment clarifies the nature of the right as a shared right in a single payment. Apart from its value in that regard, it is also necessary to insert it to help to fix a problem that arises in section 2(a) of the Bill, which proposes to insert a new section 208(3A) into the principal Act. This will be made clear in the next amendment.

I welcome the Minister of State to the Seanad. I am sure he has reflected on the Second Stage discussion that took place in the Chamber on this Bill last week. I hope he will accept the amendments proposed today. My colleague, Senator Conor Murphy, spoke to this Bill during last week's debate, but as he is unavailable this evening I will make the Committee Stage remarks on behalf of Sinn Féin. I speak in support of Senator Black's amendments. Senator Black has years of experience in the industry. She made some excellent points during the debate on Second Stage last week.

We are on amendment No. 1.

Yes. I support the amendment before the House, which has been tabled by Senators McDowell and Joe Conway. We have a number of concerns around this Bill. It represents fairness for performers on distribution of earnings. We support Senator McDowell’s amendment around this. The principal Act states:

A performer has a right to equitable remuneration from the owner of the copyright in a sound recording where the sound recording ... is—

(a) played in public, or

(b) included in a broadcast or cable programme service.

The Bill before the House proposes to amend the equitable remuneration provision by providing that "equitable remuneration less reasonable collecting costs shall be shared equally as between a performer and an owner of the copyright in a sound recording." We support both of the amendments, but we definitely support Senator McDowell’s amendment on this occasion. We hope the Government does the same.

I formally second Senator McDowell’s amendment.

It is a pleasure to be in the Seanad. I am representing the Minister of State, Deputy Smyth, who unfortunately is not able to attend today. I have had a very good briefing from officials. I watched some of the Second Stage debate when the Minister, Deputy Burke, brought the Bill to this House. I understand there was some really good engagement on that occasion. This short Bill is very much a response to the Court of Justice of the European Union ruling in 2020. I appreciate the amendments, and I appreciate that Senators are advocating on behalf of a sector they know well. Of course we know that Senator Black, in particular, has a deep understanding of the sector.

While I thank Senators McDowell and Conway for proposing this amendment, I wish to explain why I will not be accepting it. The Copyright and Related Rights Act 2000, as amended, implements EU and international law in the area of copyright. The Rome Convention is an international convention for the protection of performers, producers, phonograms and broadcasting organisations. Article 12 of the convention, which was considered by the Court of Justice of the European Union, provides that if a music recording is published, broadcast or communicated to the public, a single equitable remuneration is paid by the user. This is set out in section 38 of the 2000 Act. Article 12 of the convention also provides that this single equitable renumeration shall be paid by the user to the performer, to the producer or to both. This provision is replicated in the rental and lending directive. Section 38 of the 2000 Act provides for equitable renumeration to be paid to the producers. I did not realise "remuneration" was so difficult to say until I said it aloud. It is the case that there are different models in place within the EU as to how payments are collected and distributed. This is not at issue, and Irish law has not been found to be defective in this regard. Article 12 of the Rome Convention also provides that domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration. This is repeated in the rental and lending directive, which requires member states to ensure the remuneration is shared between the relevant performers and producers. Ireland must therefore ensure that performers receive their fair share, and this is now expressly being defined by this Bill as 50%, minus the collecting costs.

Section 2 of the Bill before House sets out the new arrangements to improve this process. The Bill makes it very clear that producers must share the equitable remuneration with performers. In the vast majority of cases, performers will receive 50%, minus the administrative costs. That is the context in which we are not accepting this amendment.

The point about all of this is that the actual allocation of equitable remuneration between the owner of the sound recording copyright and the artist performance copyright is something which needs to be solidly grounded in clearly understood principles. At this stage, it should be stated that there is very considerable dissatisfaction on the part of recording artists that they are not getting their fair share out of the equitable remuneration collected by licensing bodies for the use of sound recordings.

In effect, the recording artists are driven towards a 25% share rather than a 50% share. Of course, it is the case that the sound recording interest and its copyright must be protected and that the recording artist must have their interest protected fairly as well. There is considerable dissatisfaction on the part of recording artists that EU Directive 2006/115/EC on rental and lending rights has not been properly transposed into Irish law.

When Ireland transposed the directive, it did not provide for a shared right. Under section 38 of the principal Act, prior to the introduction of this Bill, the producers of sound recordings were granted a monopoly over the collection of the single payment. Section 208 of that Act gave performers only a subsidiary right to claim an unspecified payment from the producers. The collection agency for sound recording owners, Phonographic Performance Ireland, PPI, entered into an agreement in 2003 for a lump sump to be paid to the representative body of the recording artists, based on the number of played tracks in any given year. In accordance with its database of performer information and its distribution rules, the recording artists' organisation then distributed the payment among the performers of the played tracks. This agreement operated consensually until the year 2014, when PPI decided to change the methodology for calculating the performers' share. When the recoding artists' organisation objected, PPI terminated the agreement.

Over the period since then, PPI, with the assistance of Phonographic Performance Limited, PPL, which is a similar organisation in the United Kingdom and has among its participants Universal Music Group, Warner Music and Sony Music, has taken over all aspects of the management of the performer share of the single payment, rendering the recording artists' organisation redundant in relation to its key function. PPI has also incrementally adopted new "rules", as it put it, affecting the performance shares and driving down payments to performers to less than 25% of the total amount collected. The recording artists' organisation has been in litigation with PPI since July 2016 at enormous expense to the performers and under the threat it may ultimately not be able to survive.

PPI and PPL members are very wealthy organisations whereas the performing artists are, by definition, much more vulnerable and much less organised. In the course of the litigation I have just referred to, the High Court referred several questions to the Court of Justice of the European Union, ECJ. On 8 September 2020, the court ruled that Ireland had failed to transpose the directive by confining the right to remuneration to a limited set of performers. That enabled PPI to allocate royalties to what were termed "non-qualifying performers" and to divert those royalties to producers. In the five years that followed that, between 2020 and now, the State has failed to implement the ruling of the court. PPI has continued to withhold the sums due to those performers whom it disqualified on the basis of the discredited section of the principle Act.

Now, the Government appears to be in a great hurry to put an end to this long and embarrassing delay in implementing the ruling of the ECJ before the State takes up the Presidency of the European Union in July. Patently, that is the State's only interest. Instead of clarifying the right is a shared right or even modifying the monopoly granted to the producers with conditions that strike a fair balance between performers and producers, the Bill, in its present form, will seriously damage performers' interests.

It is in that context this amendment has been formulated. The purpose of this new subparagraph (3A) is to make it clear what the nature of equitable remuneration is - a right to receive equitable remuneration to be shared between the owner of the sound recording and performers whose performances are incorporated in the sound recording.

I echo what Senator McDowell said. It seems the Bill intends for revenues to be split twice, resulting in only a 25% share going to the performer, which simply is not fair. As we all know, Ireland has exported its music and songs all over the world. We are renowned for the quality of the performers we have. Surely, we do not want to devalue their contribution or the importance of the overall arts we offer. The Bill also looks at the need to recognise the importance of the collective management organisations, CMOs. It is entirely appropriate for CMOs, which are registered with the Controller of Intellectual Property, to act on behalf of the performer in cases where this is what the performer prefers.

The Bill also has to specify the calculation of the share of the individual performers would be carried out by a licensing body for performers' rights with the necessary credentials. In the event there is more than one such body and they cannot agree which one will carry out the calculations, the controller can designate the body to conduct the role. It is not appropriate that all performers would be compelled to go to the Circuit Court to dispute this. In cases where a performer is in dispute with a major record label, there is a very real danger the performer will just not follow through or pursue it because of the resources they are limited to in comparison with a massive label.

It is not a fair or equitable measure and I ask the Minister of State to again review the amendments to ensure a level playing field for all of the performers.

I have a very brief point. On the exposition by Senator McDowell on the decimation of the 50:50 split to a more likely 25% split for the performance, this is very likely to be the case. If that happens, it would be a singular lack of fairness and a singular demonstration of a miscarriage of fairness to the performers. If we are talking about an equitable split, this is the antithesis of it. I really cannot see how we can stand over this legislation and say it is fair and equitable.

Senator McDowell quite rightly outlined that the Government has not implemented the ruling of the ECJ. That is exactly the purpose of this legislation. That is why we are introducing it. We need to transpose the European legislation.

I am not sure where this figure of 25% remuneration comes from. It is mentioned as a likely split. We are specifically stating there should be fair and equitable remuneration and we are saying that is a 50:50 split. That is actually specifically referenced in the Bill. Therefore, I cannot accept this amendment as proposed.

We now move to amendment No. 2. Amendments Nos. 2 to 5, inclusive, are related and Nos. 3 to 5, inclusive, are physical alternatives to No. 2. Amendments Nos. 2 to 5, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 2:

In page 3, between lines 13 and 14, to insert the following:

“Amendment of section 208 of Principal Act

2.Section 208 of the Principal Act is amended—

(a) By the substitution of the following subsection for subsection (1):

“(1) A performer has the right to share equally with the copyright owner in a sound recording the equitable remuneration for which provision is made in section 38, subsections (1) and (2), after deduction of the justifiable and documented costs of collection.”,

(b) in subsection (2), by the substitution of “collective management organisation” for “collecting society”,

(c) by the substitution of the following subsection for subsection (4):

“(4) Where the method of sharing the equitable remuneration in accordance with subsection (1) is not acceptable to a performer or an owner of the copyright in a sound recording, an alternative method may be agreed by or on behalf of the performer and the owner of the copyright concerned.”,

(d) by the substitution of the following subsection for subsection (5):

“(5) In the event of a dispute arising under this section, including as to the amount of equitable remuneration payable under subsection (1) or the method of calculation thereof, the person by or to whom it is payable may apply to the Controller for an order under subsection (8).”,

(e) by the substitution of the following subsection for subsection (8):

“(8) (a) On an application being made under this subsection, the Controller shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as he or she may determine to be reasonable in the circumstances,

(b) the Controller may make a party to any such proceedings a person or organisation satisfying the Controller that the party concerned has a substantial interest in the matter.”.”

I second the amendment.

The context of the amendment is that section 2 of the Bill as proposed by the Minister sets out a series of steps to be taken in the event of a dispute as to equitable remuneration. It states that "equitable remuneration less reasonable collecting costs shall be shared equally as between a performer and an owner of the copyright in a sound recording." Instead of the very vague phrase "reasonable collection costs", the amendment refers to the "deduction of the justifiable and documented costs of collection". At the moment, if you vest in the sound recording copyright owner's organisation - and these are powerful organisations - the presumption that what it says is reasonable, that casts on the artist the obligation to prove it is unreasonable, which is unfair.

The second aspect of the amendment is to substitute "collective management organisation" for "collecting society" in section 208(2) of the principal Act.

The third proposition is that:

Where the method of [dividing or] sharing the equitable remuneration in accordance with subsection (1) is not acceptable to a performer or an owner of the copyright in a sound recording, an alternative method may be agreed by or on behalf of the performer and the owner of the copyright concerned.

The Leas-Chathaoirleach will note that under subsection (3C) of the Minister's version, it is provided that:

Where a performer and an owner of the copyright in a sound recording do not reach an agreement under subsection (3B), either party may serve a notice, in such form and manner as the Minister may prescribe, on the other party of its intention to make an application to the Circuit Court under subsection (3D) if no agreement under subsection (3B) is reached within 6 months (or such shorter period as may be agreed by the parties) of service of the notice.

Under this proposal, what happens then is that where such a notice is served and the period has expired without agreement, either party may make an application to the Circuit Court for an order to determine how equitable remuneration shall be shared between the parties concerned. The term "either party", in this context, appears to mean that the performer or owner of the sound recording are the only parties we are dealing with. The unfairness of that is that performers are not in the same position as PPI or PPL to have solicitors at their beck and call. To cast upon an individual performer the obligation of going to court to establish the divvying up of equitable remuneration is inherently unfair.

At the moment, the controller has jurisdiction to carry out this allocation function. No good excuse has been tendered in public, at any rate, for transferring the controller's functions to the Circuit Court. I have a number of points to make about that. What Circuit Court are we dealing with? Why should the controller not carry out this function? Why should it be a court procedure? Why should there be an interparty litigation before a Circuit Court judge? A Circuit Court has plenty of other work without requiring its judges to put on a different hat and start considering the whole question of equitable remuneration between various categories of copyright holders. What is the advantage of this? Is it suggested that when people bring a barrister and solicitor to the Circuit Court, it will be cheaper than appearing before the controller? I do not see why that should be the case.

In court, who will have right of audience? Will it be representatives or lay litigants in the form of the performers? Will it be lawyers? I do not see the advantage of giving to the Circuit Court this new function. I look forward to the Minister of State explaining why the Government has considered that a jurisdiction which at the moment operates satisfactorily before the controller should be taken away from a one-person tribunal and vested in the Circuit Court.

What Circuit Court are we concerned with? The Circuit Court under the Constitution is permitted on the basis that it is a court of local and limited jurisdiction. What local jurisdiction are we dealing with? Is it based on the local jurisdiction of the applicant or of the company that appears to have copyright of the sound recording? What is the purpose of this change? It is not clear. I ask the Minister of State to explain to us why it is the case that the Circuit Court is now considered to be a preferable, cheaper, more accessible and more just decision-making process than the existing controller.

I would like to move amendment No. 5.

You will have to move it when we get to amendment No. 5. You can speak to it now.

I have submitted this amendment because I am concerned about how performers can meaningfully secure their right to equitable remuneration under the Bill. Artists and musicians are some of the most isolated and vulnerable workers. Without effective practices available to them that are supported on a statutory footing, I am worried that artists and musicians will be left without workable protections so that they can fairly receive royalties for their work.

On Second Stage, the Minister stated that the Bill restores full compliance with EU and international law. However, compliance is not just about stating a right. EU law requires rights to be effective in practice and, unfortunately, the Bill as drafted does not achieve that. In fact, it diminishes performer protections because it requires prohibitively costly individual litigation to make the right to equitable remuneration real. The Minister spoke about a new process for the agreement of division between producers and performers. If an agreement fails, the State must clearly lay out the process to ensure sharing happens. That is what is really important.

The Bill tells performers they have a right, but it gives them no realistic means of obtaining that right unless they litigate individually. This avenue will be unavailable to the vast majority of performers due to the associated costs. The Minister also stated that default splits of 50:50 will make disputes unlikely and the court will only be used in exceptional circumstances. However, a default split will not remove disputes if the system allows for unilateral deductions and provides no reliable method for calculating individual performer allocations.

In this regard, I would like to voice my support for amendment No. 2 in the names of Senators McDowell and Conway, to substitute the term "reasonable collection costs" for "justifiable and documented costs". To protect the equitable remuneration rights of the performer, it is critically important that there is transparency in royalty collection. I will give the Minister of State an example. Recorded Artists Actors Performers, RAAP, have told me that performance royalties by PPI, an organisation representing record labels, distributed €3 million to performers in 2024 but RAAP, which represents all of the artists, believes that sum should have been €6 million. That is worrying. Money should have gone to performers, but it has not. There is no real transparency. That is a real concern. The Bill ignores that issue.

Can the Minister of State commit to reviewing existing legislation to address the gaping lacuna? I have worked with many artists who, without doubt, have put Ireland on the map when it comes to music internationally. They are not getting the proper rights they deserve.

Amendment No. 5 would ensure the performer's right to equitable remuneration under section 208 is exercised by default through a collective management organisation representing performers, registered as a licensing body for performers with property rights under section 286. It provides an explicit safeguard that a performer may, at any time, opt out of CMO representation easily and effectively. Similarly, regarding litigation in situations where there is no agreement on equitable remuneration in the collection of royalties, individual performers and musicians cannot realistically enforce or administer equitable remuneration in a single payment in every single instance of the use of his or her performance. This is unworkable in practice.

Default collective management is a practical mechanism that makes the right effective. It moves performers from an optional and fragmented enforcement model to a model that works at a national scale and reduces the risk that market power or complexity leaves individual performers unable to benefit from the right. Importantly, there is also an opt-out clause which ensures the system remains performer-led and rights-based, rather than locking performers into a structure they do not want.

Performers will still retain autonomy under this amendment. In addition, my amendment places a clear statutory responsibility on an appropriate performer licensing body, namely, a CMO, for calculating how the performer share of equitable remuneration is divided between individual performers.

The CMO would operate a scheme that ensured the management of equitable remuneration and provide a statutory mechanism that designated who calculated the allocation. It would prevent stalemate by giving the controller a narrowly defined tie-break role where multiple bodies were eligible to calculate the allocation and could not agree. This is the practical distribution point of royalties. A right to a share is entirely meaningless unless there are workable mechanisms to allocate that share to real people who deserve it. At present and in practice, this allocation function has been assumed, unilaterally, by the producer side, PPI, and is carried out through the UK producer-controlled organisation, PPL. The difficulty is that the calculation is being carried out at additional expense without sufficient Irish performer data and matching capability, with the result that many performers are under-identified, underpaid or not paid at all.

My amendment would make allocation auditable because the calculation would be carried out by a recognised performing licensing body under an appropriate scheme. This would be efficient because responsibility would be clearly assigned and harder to obstruct, given that any delays through institutional disagreement would be resolved by a neutral controller decision. This would remove ambiguity over who performed the allocation and prevent deadlock where multiple bodies could claim the task of collecting and ensuring the performers' share was allocated using an identified scheme-based process rather than being shaped by a bargaining power. If we are serious about creating a meaningful right for performers to their fair share of royalty payments, then we must provide a workable mechanism to achieve that.

I hope the Minister of State will accept this amendment. It is very important. I would have liked to have met the Minister to discuss it but, unfortunately, he was not available.

All of us in this room would pride ourselves on being good Europeans and I am sure Government Members, including the Minister of State, would be no exception to that. In a time when there is a certain amount of fragmentation in Europe, we are very much steadfast to the cause. We accede to a lot of things that demand a certain amount of nose pinching because we are good, steadfast, solid Europeans. This legislation is trying to harmonise with and conform to an EU directive and that is a very understandable imperative for the Government. However, something that is championed by the European Union is a thing called alternative dispute resolution mechanisms. That being the case, I wonder where this sudden flight to the Circuit Court is coming from. If the impetus behind all of this is regularisation and harmonisation within Europe, then why are we flying in the face of what Europe wants us to do with alternative dispute resolution mechanisms and going pell-mell to the Circuit Court? Actually, that last is not us, but why are we recommending this to impecunious groups, performers and musicians that are starting out?

Recently, I was looking at the 1911 census as it applied to my own county of Longford. The vast majority of males in that census were listed as agricultural labourers. For that, we can read slaves, basically, because they were hired at will at margaidh na saoire, about which the poet Rafferty wrote. These were the uneducated, the lowest form of personnel in the whole countryside. They were agricultural labourers who were hired and given a pittance by the big farmers. Very often, if they complained, the did not get hired again. Nowadays, their equivalent are the young performers, some of whom may not even be all that young. Some of them can be at it for a long time and still only be making a pittance or nothing at all. If they have a dispute with somebody who has their intellectual property or their performance rights, they are exhorted to go to the Circuit Court to have it sorted out. I am a good while around but I would be very slow to go into the Small Claims Court or the District Court, never mind the idea of ever willingly or trustfully facing the whims of the Circuit Court, with the cost of solicitors and barristers. We are talking about several multiples of tens of thousands of euro, possibly. If one looks at the performing organisation, RAAP, it has been involved in a court case that has been going on for the best part of ten years. I believe, and maybe Senator McDowell can confirm this, that the case is listed to be heard in the Supreme Court in late October this year. The cost for that organisation is enormous. I dread to think what it will be but I am sure it will be into the millions.

To exhort non-waged, low-waged or impecunious performers and their cohort to look to the Circuit Court for resolution is both flying in the face of Europe and asking them to do something that is completely counterintuitive, namely, to buy into a system of redress that is way outside their affordability league. Where is this impetus coming from? Is it that the Government is dissatisfied with the controller and feels the need for another arm of redress to be brought in? Was it some blinding flash that occurred to the Government, despite the equalities in Europe?

I will read out some information now for comparative purposes. The adjudication of disputes in the UK is dealt with by reference to the copyright tribunal. In EU member states, the results of a survey carried out by RAAP indicate that, in most countries, there has never been a dispute at all. Where a dispute is possible, either competent authorities or supervisory institutions have a role, both being State entities. In no EU country can we find the use of the courts system as the only form of dispute resolution. Why this headlong gallop to the Circuit Court when nobody else is doing that? None of our neighbours in the EU is doing it. I am sure the Minister of State is going to tell us that he is standing over this provision but I am at a loss to know why. I am sure, as we heard from Senator Black, that there is no hue and cry from the performing industry for this. I am sure the man on the Clapham omnibus is not calling for it. Where is it coming from? I would love to know.

I will speak very briefly in support of these amendments proposed by Senators Black, McDowell and Conway. To pick up where Senator Conway left off, this focus on the courts system does seem strange. A lot of this legislation is deriving from the fact that the artists already won their court case. They took the court case. They took it to the European courts and the message that came down was that we needed to have an equitable distribution mechanism.

It is almost suggesting that individual artists or groups of performers would now have to continue fighting in each individual instance if they are not happy with the system even though the principle has already been won. I know the Minister of State has said that the Bill will restore compliance with EU and international law but it contains a big hole, in that people may have to continue fighting to be satisfied that they are getting the fair share. In individual instances, they would have relitigate it in the Circuit Court rather than having a trusted system, which is what is being called for. Both amendments look to restore the role of the Controller of Intellectual Property. We have not had significant issues arise. The issues that have arisen are from a situation where producers held an extraordinarily high level of control of being able to tell people what they would get. The controller is not where the problems have arisen, so why this very small role for the Controller of Intellectual Property? Why is the Minister of State avoiding or not accepting these amendments that are looking to strengthen the role of the controller as a trusted body in terms of resolving this dispute, as well as looking to a proper CMO in terms of the original decision?

It is telling that the case was won at the European level because of the long-standing principle in Europe of l'exception culturelle. This is the very strongly established principle that certain things can be left for the market to decide but other things are of such collective value that there must be active measures from the state to ensure and protect them. The amendment to ensure that the division is fair is being put to the Minister of State because we cannot rely on simple market dynamics to do that when there is often a huge imbalance of power between starting artists and large production companies.

The fact that Europe has pointed to the need to ensure that artists are properly reimbursed and their rights reflected is also a point about the huge value that is brought to us by performers, including voice artists and actors. We are already getting dividends as a society from this that they do not get a share in. When we talk about the money being generated, the minimum should be that it is divided. We see how artists are relied on in promoting Ireland abroad, promoting our reputation, generating tourism and being the centrepiece for cultural activity. Performing artists are doing huge work, far beyond any money that ever reaches them. The minimum should be that they get a fair and clear share from the money associated with their performances. We know that if we leave it to the Circuit Court, many artists are not going to take a case to resolve a situation such as this. There will not be an equality of arms in that kind of context.

Amendments Nos. 2 and 5 set out effective, reasonable mechanisms that those who are the impetus behind this legislation, in that they have successfully argued the point at European level, are saying will work. It is independent. It allows for a controller who can see the pattern of cases rather than a haphazard situation because who knows who you might get in the Circuit Court. With the Controller of Intellectual Property, we have someone who can look at the patterns and at what is equitable and fair over a number of cases over a long period of time and can develop an expertise. What we have heard is that it is working everywhere else.

I particularly welcome the point in amendment No. 2 to ensure that we do not have a slide in terms of what additional deductions may happen. We wold not see it being gradually chipped away. Rather, there would be a requirement for the costs to be justifiable and documented. That is another piece that could chip away at the 50:50.

This is Committee Stage and Report Stage is coming. I ask the Minister of State to go back and really consider, particularly in relation to section 208, how this could be done better and how we could avoid the pitfalls. Instead of just doing the minimum, we could set up a mechanism that stands for the ages and would be recognised as part of a supportive infrastructure for the arts. In the past, Ireland marketed and promoted itself as supportive of the arts and should be continuing to do so. I would advise the Minister of State to listen to the artists on this and come back with something a little better on Report Stage.

I will elaborate on what Senators Conway, Higgins and Black have said. I ask the Minister of State to explain to the House where the initiative to transfer the Controller of Intellectual Property's jurisdiction to the Circuit Court came from. Whose idea was it? Did the controller say he was inundated with these disputes and, therefore, was overwhelmed and could not do the work and it would be better if the Circuit Court, that august institution that has not enough to do between its licensing and family law cases, take over this jurisdiction? Why is it that Ireland is deciding this? We need answers from the Minister of State on this because this is Committee Stage, where questions have to be answered. Precisely what advantage is seen in vesting this jurisdiction in the Circuit Court? Are the decisions to be made on the basis of higher quality? Another question that arises has to do with what Circuit Court judge is going to deal with it. Is it going to be the Dublin Circuit Court? Is it going to be the Circuit Court in Tralee, Galway or wherever else of an afternoon? How is the venue decided?

One of the points in the amendment in the names of Senator Conway and me is that, where an individual holder of the performing right is involved, namely, the artist holding that copyright, it should be written into any procedure that they can be represented by a collective party. However, as I read the Minister of State's amendment, there is no provision of that kind. The person has to be the holder of the copyright or the holder of the copyright in the sound recording. All of these things need to be clarified in the House as to why this is a move forward.

Senator Conway has drawn the House's attention to the fact that, as far as he and the people who have briefed him are aware, no other country in the European Union has decided to vest the adjudication of equitable remuneration disputes in the court system, which is an adversarial one. The British have not done this. They have a copyright tribunal or whatever. We have a copyright tribunal in the form of the Controller of Intellectual Property.

We are entitled to a fair and straight answer. Did the controller say he was sick of this jurisdiction, he could not handle it and it should be sent to the courts? Alternatively, is it the case that there is such a volume of these disputes that the office of the controller is under-resourced to deal with them? Who in their right mind thinks it is a good idea that, after a morning hearing landlord and tenant applications, new licensing applications for licensed premises and family law disputes, a Circuit Court judge is then, possibly for the one and only time in their life, confronted with the function of determining what is or is not equitable remuneration, how it should be divided and what are or are not reasonable costs of collection?

We need clarity now. This is the time for clarity, not on Report Stage. Why is this being done?

The Minister of State has the power to accept these amendments today and give us some time to discuss this going forward. It is the right thing to do. He knows it is the right thing to do. He can make a difference for the people I know well and work with, the artists I have worked with all my life. I have seen unbelievable music coming out of this country. We have put Ireland on the map when it comes to music. Anywhere we go - the US, Germany or anywhere in the world - we see how we are received as performers and artists. In fact, we have one of our top musicians in the Gallery - Paul Noonan from Bell X1, a phenomenal band that have travelled all over the world. The Minister of State has the power to change this and give us more time. We do not want to call votes on this. Will he give us some time and let us have a proper meeting with the Minister? I tried to get a meeting with the Minister. Unfortunately, he was not available. Will the Minister of State be courageous, accept these amendments and give us that bit more time? Then we can hash it all out on Report State. I just need that bit more time.

Mar fhocal scoir ar an leasú seo, ba mhaith liom a rá that the likelihood is that we have a very generous window of time to discuss this. I see this as one of the parts of the Bill that have the most critical implications for the whole industry. Like me, the Cathaoirleach played a bit of football and I suspect the Minister of State probably did as well. They will recognise the expression "to be given a hospital pass". I think the Minister of State has been given a hospital pass to see this through. In the short time I have known him, I have known him to be reasonable man and I find it hard to understand how anybody could dissipate the powers of the controller over to the Circuit Court, despite the fact that is an outlier in Europe - nobody else is doing it - the costs involved and the unlikelihood of it being taken up. I just fail to see the rationale or the logic behind it.

There is a bit of detail in the proposed amendments. I acknowledge Paul Noonan in the Gallery. It is probably of no consolation whatsoever to him but "Alphabet Soup" by Bell X1 got me through my college days. They are an incredibly talented band. Senator Black is absolutely right that we are so rich with the number of talented artists we have in this country. Unfortunately, I cannot accept any of these amendments. I will speak to amendments Nos. 2 to 5, inclusive, together. While I appreciate their intention, I cannot accept them. I will try to explain in as much detail as possible, amendment by amendment and subsection by subsection, why we cannot do so.

In amendment No. 2 to section 208(1), the Senators have proposed working that includes "justifiable and documented" collecting costs rather than "reasonable" collecting costs, as stated in the Bill. Detailed provisions on the deductible administrative costs apply to collective management organisations through the collective rights management regulations, which transpose the collective rights management directive. These regulations provide that any deductions made by collective management organisations must be justified and documented. The wording is already contained within those regulations. These deductions are subject to further scrutiny by the competent authority, the Intellectual Property Office of Ireland. The wording of the Bill was carefully considered. The word "reasonable" was chosen as it requires consideration of the question of fairness. Justification is already required and this forms part of the consideration as to what is reasonable. On that basis, the wording as proposed in the Bill is preferred, and the Government believes it provides the intended level of protection for performers.

In section 208(2), the term "collecting society" is substituted for "collective management organisation". The term "collecting society" was chosen to ensure consistency with other part of the Copyright and Related Rights Act. Not all collective management organisations are collecting societies.

Regarding the proposed wording in subsections (4), (5) and (8), the Minister, Deputy Burke, set out last week the rationale for the proposed new three steps, which are the following. First, a default 50:50 split applies in the first instance. Second, parties may negotiate a different agreement. Third, if either party is not happy with the 50:50 split, they may make an application to the Circuit Court for adjudication. The proposed amendment to subsection (8) proposes to allow the controller to make a person or organisation party to such proceedings. However, this is not necessary. Subsection (3B) of the Bill states that the sharing of equitable remuneration can be agreed by or on behalf of the performer and the owner who is a producer. It is already the case that a performer or producer may be represented by their representative body or a collective management organisation for the purpose of reaching an agreement. This is provided for in section 208(2), which states that the right to equitable remuneration can be assigned by a performer to a collecting society to exercise that right on his or her behalf.

The Senators propose to retain the function of the controller as final arbitrary of disputes as to the sharing of equitable remuneration, which the Government does not accept. The Bill removes this function from the controller. This is necessary in the view of the Government. This point has been discussed both in Dáil Éireann and on last week's Second Stage debate in this Chamber. The reassignment of functions from the Comptroller of Intellectual Property to the courts constituted an appropriate and necessary course of action. Adjudication of a dispute by the controller under section 208 of the Act extends beyond the scope of intellectual property law and requires the application of equitable principles. For this reason, the Bill proposes to set out clearly a 50:50 sharing, which we expect will apply in the vast majority of cases. For exceptional cases where this 50:50 split is not deemed acceptable, the courts possess the requisite authority to adjudicate on matters of equity, drawing on case law and long-standing tradition of applying equitable remedies. The controller has statutory functions under the Copyright and Related Rights Act 2000, which are mainly concerned with the registration of copyright licensing bodies, references and applications relating to licensing schemes operated by those bodies. For this particular type of dispute, which is complex and also very rare, the courts are best placed to adjudicate on such matters. Furthermore, a judgment of the court is enforceable, which is not the case for determinations made by the controller.

In amendment No. 4, the Senators wish to delete the provision regarding limiting appeal from the Circuit Court to the High Court and from the High Court to the Court of Appeal to a point of law. The Government objects to this, which is a common provision in legislation.

I thank Senator Black for proposing amendment No. 5 but I am unable to accept it. As discussed in response to amendment No. 1, this amendment extends beyond the scope of the Bill. It must be remembered that under Irish law the producer and performer may be represented by a collective management organisation of their choice, or none at all. In Ireland, this matter was the subject of a court case that concluded in 2021. This is a separate case to the one that was referred to the Court of Justice of the European Union. There is no question that Irish law is defective in this regard. The Government does not intend to legislate on this point. In addition, subsection (3B) of the Bill states that the sharing of equitable remuneration can be agreed by or on behalf of the performer and the owner who is the producer.

On the proposed amendment regarding the calculation of equitable remuneration, the Bill sets out a new process to decide how equitable remuneration is shared if this cannot be agreed by those involved, as is required by the EU rental and lending directive. First, there is a 50:50 split. This is a new inclusion. Second, there is a possibility for the parties to negotiate a different split. This is contained in the current copyright Act. Third, there is a possibility for either party, if they cannot reach an agreement, to refer the matter to the Circuit Court to make a determination on that matter. The relevant directive and the international conventions require that member states lay down the conditions as to the sharing of the remuneration between them in the absence of an agreement between them. As part of the court case, it emerged that 18 member states provide in their copyright laws that in the absence of agreement between the parties, the single equitable remuneration following deduction of management costs is shared equally between producers and performers. The new provision will act as an incentive to the parties to reach an agreement along those lines. However, we do not wish to remove the right from producers and performers to reach an agreement between themselves as to sharing the remuneration that may differ from an equal share. Mandating equal sharing in all cases would remove this freedom to negotiate.

It would also negate the need to have an arbitration process that is subject of section 3 of the Bill. Therefore, while I thank the Senators for their proposed amendments I cannot accept any of them.

I move amendment No. 3:

In page 3, to delete lines 26 to 32, and in page 4, to delete lines 1 to 13.

I move amendment No. 4:

In page 4, to delete lines 30 to 35.

I move amendment No. 5:

In page 4, between lines 35 and 36, to insert the following:

"(d) by the insertion of the following subsections after subsection (10):

"(11) The right of the performer in subsection (1) shall be exercised by a collective management organisation representing performers, registered as a licensing body for performers’ property rights under section 286, subject always to the right of the performer at any time to easily and effectively opt-out of such collective management.

(12) (a) The calculation of the division of the performer share of equitable remuneration between individual performers shall be carried out by a collective management organisation registered as a licensing body for performers’ property rights under section 280 in respect of a scheme that includes management of the right to equitable remuneration,

(b) where there is more than one such licensing body and in default of agreement between them as to which of them should undertake the calculation, any such licensing body may apply to the Controller for an order determining which of them is best placed to carry out the calculation. The Controller shall determine the issue taking all relevant factors into consideration.".".

When is it proposed to take Report Stage?

Next Tuesday.

Is that agreed? Agreed.

When is it proposed to sit again?

Tomorrow morning at 10.30.

Is that agreed? Agreed.