2026-01-21

Amendments Nos. 1 and 2 are related and will be discussed together.

I move amendment No. 1: In page 3, between lines 13 and 14, to insert the following: "Amendment of section 38 of Principal Act 2.In subsection 1(b)(i) of section 38 of the Principal Act, to insert the following after "programme service to a licensing body": "for the purpose of remunerating jointly the copyright owner in the sound recording and the performer(s) whose performance(s) are incorporated in the sound recording, in respect of such playing or inclusion".". These amendments relate to issues that were previously raised on Committee Stage. I and some of the organisations involved had written to the Minister of State in the hope that during the gap between Committee Stage and Report Stage, she would take the time to consider and address the issues with her own amendments on Report Stage. There is not a huge number of issues but they are very pertinent to those who are performers. We did not see ministerial amendments so we have gone ahead and tabled amendments reflecting the work done by Recorded Artists Actors Performers, RAAP, and AEPO-ARTIS, the Association of European Performers' Organisations, which represents more than 500,000 performers across Europe. Both organisations made submissions to the Minister. RAAP has been a lot more concise in this submission because we teased out a lot of the issues on Committee Stage. RAAP sent its submission to the Minister and it had hoped there would be an answer at the very least. A more affirmative answer would have been in the form of amendments to address the clear problems that are still in the Bill. In fairness to both organisations, they offered constructive proposals to improve the wording. The key is to ensure full compliance with the European law. The only reason we are here is because the courts have found that we were not in compliance. We believe that a few minor changes will put us in compliance and I will come back to this. In the amendments I tabled I have echoed the requests of both organisations. We believe there is gravity in this and some of those from RAAP have joined us in the Gallery tonight. They are disappointed that the debate has been guillotined to one hour. Perhaps it will be enough and perhaps the Minister will accept the amendments and we will all be happy with the hour. At the very least, we want to get on the record what the amendments seek to achieve and to make sure, if they are not accepted tonight, that the debate will continue. Perhaps the Minister can look at them again before the Bill goes to the Seanad. I thank RAAP and its legal adviser for the amendments and for the comprehensive notes supplied with the proposed amendments. I will concentrate a lot on this today. Amendments Nos. 1 and 2 deal with two substantial points. Amendment No. 2 proposes to delete words from section 208 of the principal Act and amendment No. 1 proposes to insert wording in section 38 of the principal Act. These are to clarify the revenues collected by the licensing body acting on behalf of the recordings and by the performers whose performances are being incorporated therein. The change proposes to make explicit the effect that the existing provisions of the Act, namely, the payments made under section 38, represent payments for both the copyright owner of the sound recording and the performers whose performances are incorporated in it. It is useful to remove doubt at this point, should any exist, to facilitate simple and efficient collection and the sharing of that right. The amendment expresses what is required under Article 8(2) of Directive 2006/115/EC, namely, the payment of a single, equitable remuneration to be shared. The additional wording proposed in amendment No. 2 bookends the proper transposition of the right to be shared in providing that performers have the right to a share of all payments collected under section 38. The correction of the qualification criteria to provide a common qualification for the right means that there would be no distinction between the sums paid and payable under section 38 and the sums from which the performers' share gets paid. The condition as to the justifiable nature of the costs of collection and their documentation needs to be introduced to avoid any possibility that these protections provided for in section 10(3) of the collective rights management, CRM, regulations might be argued not to apply in circumstances where the collective management organisation, CMO, is collecting licence revenues for rights holders that are not its members. If the Bill puts the producer's CMO in a position of collector of revenues for rights holders that are not its members, then the attendant requirement of transparency and reasonableness off the cost of collection should follow. It is in some ways a bit convoluted but the key is to ensure that we are transposing legislation in the proper fashion, that we do not fall foul of it, and that it is very clear to ensure there is no doubt and to prevent any arguments in the future that would require the Controller of Intellectual Property or, if the Minister of State gets her way, the Circuit Court to deal with them.

I want to support these amendments. We have had a lot of discussions at the introductory stage in the committee. The Minister has been engaging with the representative bodies and I take that on board. However, there are still issues in relation to what should be taken on board and what should not be. This being the Report Stage before the Bill goes to the Seanad, maybe the Minister of State would give her final and absolute legal advice, because I do not see what would be wrong with putting these amendments in. If something else is highlighted in the Seanad, it can be amended at that stage. What is proposed is reasonable unless there is some absolute legal barrier. That is my tuppence worth.

I thank all the Deputies on the committee because we had some robust debates on this matter, which I appreciate. I welcome the representatives of RAAP, who are in the Gallery. I thank them for the engagement they have had with the officials in my Department on this. I know they were sincerely meant and very meaningful. I thank Deputy Ó Snodaigh for these amendments. The sharing of equitable remuneration or royalties between producers and performers, when music is played or performed in public, is required by international, EU and national copyright law. This Bill clarifies how this sharing takes place in the case of disputes. It also grants the role of the final arbiter to the Circuit Court rather than the Controller of Intellectual Property Office of Ireland. The purpose of the Bill is to address the findings of the Court of Justice in its judgment of September 2020 with respect to deficiencies in Ireland's transposition of Article 8(2) of the rental and lending directive. The manner in which these licence fees are collected does not fall within the scope of the judgment nor of the Bill. It is already clearly set out in Irish law in the collective rights management regulations, which transpose the EU directive on collective rights management, that any deductions made by collective management organisations must be justified and documented. This wording is already contained in those regulations. These deductions are subject to further scrutiny by the competent authority within the Intellectual Property Office of Ireland. Inclusion of this wording is, therefore, not necessary. Rights holders have the freedom to choose their collective management organisations and to assign rights to them.

I am disappointed that the Minister of State has not seen the need to adopt these amendments, which are clarifying a situation that she says does not need to be clarified because it is already in law. Obviously, it is not in law and it is not clear if two different organisations with their legal teams had a look at this. My own legal advisers had a look at this and they all said that, to avoid doubt in any way, these amendments were required. Separate to that, they are required to ensure that there is no undermining of the position of the collective management organisations on both sides. RAAP would be one in this case or Phonographic Performance Ireland, PPI, would be the one on the producers side. It is to make sure that there is no doubt as to their role and their ability to collect revenues. Most of these amendments are tied together in some ways to make sure there is fair and equitable distribution of that based on what was fully intended in the EU directive. Avoiding doubt would ensure that we are not back here again in the future with other legislation to plug a hole that we have identified here and that we can take the opportunity to address it now rather than wait until another judgment in the future finds that we are still in breach of the directive.

I have listened to Deputy Ó Snodaigh's arguments but, on this occasion, I cannot accept the amendment.

I move amendment No. 2: In page 3, between lines 15 and 16, to insert the following: “(a) in subsection (1), by the substitution of “which is comprised of a share of any and all payments collected or collectable by or on behalf of the copyright owner under section 38(1) after deduction of justifiable and documented costs of collection” for “where the sound recording of the whole or any substantial part of a qualifying performance which has been made available to the public for commercial purposes is— (a) played in public, or (b) included in a broadcast or cable programme service”.”.

Amendments Nos. 3 to 5, inclusive, and 7 are related and will be discussed together. Amendment No. 4 is a physical alternative to amendment No. 3.

I move amendment No. 3: In page 3, to delete lines 16 to 32, and in page 4, to delete lines 1 to 14 and substitute the following: “(a) by the substitution of the following subsections for subsections (4), (5) and (6): “(4) Subject to subsections (5) to (9), and unless otherwise agreed by or on behalf of the persons by and to whom it is payable the amount of equitable remuneration payable under this section to the performers on a sound recording is equal 50 per cent share of the payments referred to in subsection (1), which shall be referred to in this Part as the Statutory Share. (5) The person by or to whom it equitable remuneration is payable may apply to the Controller for an order under subsection (8) to vary the Statutory Share. Where there are numerous persons having the same interest in the subject matter of any such application, one or more of such persons may apply to the Controller under this subsection on behalf of all persons so interested. Representation by the same licensing body for the same rights shall be taken as proof of persons having the same interest in the subject matter of the application for the purposes of this section. A licensing body which represents persons making an application under this section may also be a party to an application made by any person or persons whom it represents. (6) Subject to subsection (7), a person or persons by or to whom equitable remuneration is payable having the right to apply to the Controller under subsection (5) may also apply to the Controller— (a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Controller as to the amount payable.”,”. Amendment No. 3 seeks to delete paragraphs (a) and (b) of section 2 as proposed in the Bill, which intends to replace subsections (4) to (9) of section 208 in the Act and to insert new subsections (3A) to (3E), doing away with the right to recourse to the Controller of Intellectual Property. Amendment No. 7 deletes section 3, which also transfers the controller functions to the Circuit Court. While the Minister of State's amendments Nos. 4 and 5, which she will move herself, will bring clarity as to how the Circuit Court will deal with subsequent requests to change as an order under the proposed new system, we ask that the Minister of State reconsider entirely the transfer of functions from the Controller of Intellectual Property. The Association of European Performers' Organisations, AEPO-ARTIS, made it very clear in its submission to the Minister of State that transferring this function to the Circuit Court, thus necessitating costly litigation, is tantamount to depriving performers of any redress or dispute resolution mechanism. It also pointed out that it was a fundamental principle of EU law that rights must be effective in practice. The European Commission has explicitly stated that legislative wording that does not achieve its objective is not only not fit for purpose, but is not compliant with EU law. In other words, as RAAP has outlined, if the Government passes legislation that ticks the box with the legal provisions but is of no practical help to the artist seeking to get their royalties, then it has not achieved compliance with the EU directive. At the end of the day, this is about ensuring full compliance but also ensuring that artists and producers get their equitable share and that the artists and performers get their royalties. Therefore, once again, we ask the Minister of State to delete these sections. Instead, we propose to retain and amend the existing subsections. The change proposed to subsection (4) is intended to adjust and augment what was intended to be provided for in section 3A of this Bill. Insofar as the right to a particular percentage share is to be provided for, it must be provided for, as between the performers on a sound recording and the producer as distinct from "a performer", where there may be several performances comprised on the sound recording. In other jurisdictions, a statutory or prescribed split is typically made, subject to an alternative agreement between the interested parties, and we have made provisions for that in the amendments. This is distinguishable from an ability to set aside the statutory share on the basis of one of the beneficiaries being unhappy with it - that is currently provided for in section 3B of the Bill — which would set at naught the protection entailed in the provision for a statutory share. The amendment to subsection (5) would replace section 3B of the Bill and enables an application for dispute resolution. Such an application would require the applicant to set forth evidence to establish the case and would not provide a mechanism to otherwise seek to avoid the application of the statutory share or other agreement between the parties. The amendment would also retain application to the controller as the dispute resolution mechanism for such disputes on the basis set out in the following paragraphs. Insofar as a dispute arises in respect of the methodology and payment of performers, and indeed in respect of any other dispute arising under section 208, this is suitable for expert assessment or arbitration - that is a point that was made in the committee - both of which can be appointed by the controller. Sections 365 and 367 of the Act allow for that. Insofar therefore as there was a concern in the Department that the Intellectual Property Office of Ireland lacked capacity to determine such disputes, that concern is unfounded. That is no more the case than in the Circuit Court, which in the future will have to rely on bringing in outside expertise because there will not be the expertise sitting around waiting on these cases. The Intellectual Property Office can ensure that expert assessments would be got for the arbitration of cases. Why get rid of something that has worked - or rather it has not worked because there have not been cases before it? I think there was one case. Why end a system that works or at least can work to effect the EU directive? Our understanding of the difficulty that the controller experienced in receiving applications for dispute resolution from RAAP was not a lack of capacity to determine them, but the extent to which issues affecting the legal basis for determination of the dispute was still pending before the High Court in the actions taken by RAAP against PPI. lf a role in resolving licensing disputes concerning the right to equitable remuneration was now given to the Circuit Court, it would be the only role allocated to the Circuit Court by the Act. I find it strange that we are trying to burden the Circuit Court with additional work. The threshold in the Circuit Court in most regards is for cases over €15,000. It ensures that anybody going to the Circuit Court will require a solicitor and in most cases a barrister also, which adds to the costs. I still believe the Minister of State should take the opportunity to withdraw this change and revert to the role of the controller. She should ensure it is enhanced rather than taking away from it.

I have more experience of dealing with issues related to family courts where I have been chasing up issues relating to the in camera rule. It does not necessarily relate to this legislation but it does on one fundamental point, which is that sometimes, it is apparent that the judges rely on so-called experts because they are familiar with them but they are not necessarily the experts in their field. What could happen here by bringing it to the Circuit Court is that it would delay the process and make it unaffordable. Basically, while we may end up with a resolution, it is going to be a half-baked one further down the line when it could have been preferable to fix the existing system. That question has still not been answered, as to why the Minister of State believes that the Circuit Court would have the knowledge, expertise, inclination or resources to deal with this area. I am not saying there is going to be an avalanche of cases but if there were a number coming, would the Circuit Court have the capacity or the ability to get those experts in good time?

I thank Deputy Ó Snodaigh for his amendments - amendments Nos. 3 and 7 to which I will speak, as well as to the Government amendments Nos. 4 and 5 . I also thank Deputy Gogarty for his contribution. Amendments Nos. 3 and 7 were discussed at length during Committee Stage. I do not support them. The Bill sets out a new process to decide how equitable remuneration is shared if this cannot be agreed between those involved, as is required by the EU rental and lending directive. The Bill therefore introduces a backstop, namely, a default 50:50 split between performers and producers. We expect this will mean that it is extremely unlikely that questions on what is equitable remuneration will be referred to court. As discussed during Committee Stage, an individual may take a case, or a licensing body or collective management organisation, CMO, may take a case on behalf of their named member or members. We discussed in great detail the role of the controller as compared to the court as final arbiter of such disputes and the rationale for this change. The Bill removes this function from the controller, in favour of the Circuit Court. The adjudication of such matters extends into a judicial remit, and therefore the courts are best placed to decide on these matters. I do not accept that this will negatively impact on performers and producers in Ireland. To date, there were no referrals to the controller, until a dispute arose between two CMOs, which remains ongoing before the courts. With this Bill, there is a clear process. Agreement should be reached through negotiation between producers and performers, and a default 50:50 split applies. Circumstances where there is a deviation from this default split would be extremely unusual. I will now turn to the two Government amendments, Nos. 4 and 5, which I flagged during Committee Stage. These ensure that the amended Copyright and Related Rights Act will provide the same right of appeal as before. This will mean that if an adjudication is made by the Circuit Court, and the circumstances change, there is the possibility for either party to return to the court for another hearing once a year has passed since the original ruling.

The likelihood of somebody returning a year later is as unlikely as somebody taking a case in the first place, unless they have money behind them. That is one of the issues when we resort to the courts. It is not as simple as that. I accept that an individual can take a case but even if a person represents himself or herself where there is a grievance, he or she usually requires legal advice. Legal advice at different levels is expected for different courts. That is one of the reasons we must try to avoid pushing citizens towards courts at different levels. If at all possible, we must try to settle grievances or disputes through arbitration or, in this instance, the role of the controller. It has not been shown that the controller has failed. Given that, why fix something that is not broken? We could enhance the role of the controller. You can add time limits if things are running on. As the Minister of State was just saying, people still have the right to go back for another adjudication. If people are not happy with the controller, they can go to the courts. That is always your right as an individual, as a collective management organisation, CMO, or as any organisation in the State. You have recourse to the courts but most people do not make use of this if they respect the role of the controller's office. That is why we have argued, both today and in the past, that we should retain the role of controller. If someone can show me where it is failing, I will consider that.

The music industry has changed over the years. The revenue from streaming is minuscule so a lot of artists are trying to get their stuff onto the likes of TikTok and are trying to get airplay on radio, where you still get a certain amount of royalties. They usually try to get to a point where they can tour. Touring can be hit and miss for a lot of artists. They do not necessarily make a lot of money. The very successful ones do. That is why the previous Government's introduction of the stipend for artists was so beneficial. We hope that will continue. This is a long-winded way of saying that, while some people may occasionally hit pay dirt and get some of their works licensed, if you are a contributor to someone else's work, your income is going to vary from year to year and will often be quite low. If you want a bring a dispute to court, even the hourly cost for a solicitor is quite onerous. You are talking about €200 or €300 multiplied by the number of hours. It is not worth it to fork out €1,000 or €2,000 on a case that might only be worth €4,000 or €5,000 to you. The principle of justice remains, however. That is why having it sorted out outside the courts would have been cheaper and more efficient. While we hope there will not be many cases, where they do arise, they are going to be quite onerous. As Deputy Ó Snodaigh said, people are going to have deeper pockets. The people who are trying to scrape a living will not be able to sort out their grievances if the 50-50 split is not as it should be.

I thank both gentlemen for their contributions. To reiterate the point, there had been no referrals to the controller before the most recent dispute arose. The adjudication of such matters does extend into the judicial remit. The courts are therefore best placed to deal with this. I take on board the point that it is certainly not pleasant and not a financial direction anyone wants to take but, if the matter extends into the judicial remit, the courts need to be involved.

It is just strange. All of the other disputes concerning licensing arrangements under the Act will continue to be dealt with by the controller. That also seems to stray into adjudication. That is the concern. Only one part of dispute resolution is being shifted from the controller to the courts. Disputes under section 38 will still be dealt with by the controller. A difficulty arises under the doctrines of res judicata and issue estoppel in cases where repeated disputes as to the valuation of rights arise between different rights holders or classes of rights holders. An issue has arisen from the provisions of the Act in respect of the controller's ability to determine disputes between classes of rights holders as distinct from disputes between individual rights holders. It is an extremely unlikely scenario in the rights management environment but my amendment No. 3 deals with that issue. We are trying to predict eventualities. The amendments try to ensure there are no cases in which the controller will not have the necessary powers. As I have said, if the controller finds one way or another, the aggrieved party, if not satisfied, would still have the right to go to the courts. Rather than going first to the courts, which are already full, which cost money and which make awards, we should try to use the mechanisms that are already there. The fact they are there might be a reason not to go to a court but the controller now will not deal with these issues and people will probably go to the courts. There is a cost to the courts because they have to get in the expert advice required to adjudicate cases such as these.

I move amendment No. 4: In page 4, line 13, to delete “reasonable.”,” and substitute the following: “reasonable. (3F) Subject to subsection (3G), a party to an order under subsection (3E) or (3H) may apply to the Circuit Court to vary that order where a change in circumstances has occurred since the order was made, relevant to the particulars of that order. (3G) An application under subsection (3F) may not be made within 12 months from the date on which the order in respect of the application was made except with the leave of the Circuit Court. (3H) The Circuit Court, on application to it in that behalf under subsection (3F), having regard, inter alia, to the importance of the performer’s contribution to a sound recording which is the subject of the order concerned and, in particular, the change in circumstances that has occurred since the order was made relevant to the particulars of that order, may— (a) confirm the order, or (b) make such order varying the order as the Circuit Court determines to be just and reasonable.”,”.

I move amendment No. 5: In page 4, between lines 15 and 16, to insert the following: “(i) in paragraph (a), by the substitution of “this section, or” for “this section,”,”.

Amendments Nos. 6, 8 and 9 are related and may be discussed together by agreement.

I move amendment No. 6: In page 4, between lines 18 and 19, to insert the following: “(d) by the insertion of a new subsection (11): “(11) The calculation of equitable remuneration due to each individual performer shall be carried out in accordance with subsection (4) by a licensing body for performers’ rights registered under section 280 in respect of a scheme that includes management of the right to equitable remuneration. Where there is more than one such licensing body and in default of agreement as to which licensing body should undertake the calculation, any such licensing body may apply to the Controller for an order determining the question. In making this determination, the Controller shall take all relevant matters into account including in particular: (a) the relative capacity of each licensing body to discharge this function accurately and efficiently; (b) the scope and extent of rightsowner mandates held by each licensing body; (c) the scope and extent of the data available to each licensing body in respect of the performers making or contributing to the performances in respect of which equitable remuneration is payable; (d) protections under Data Protection legislation with respect to the data referred to in subsection (c); (e) rights in the database or databases in which the data referred to in subsection (c) are comprised; and (f) any matter relevant to each licensing body’s compliance with the provisions of the European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations.”.”. Amendment No. 6 proposes a new subsection to section 208 to enable performer CMOs to manage the calculation of performers' dues in an orderly way if more than one performer CMO is operating in the State. It is a process that, of necessity, must be carried out by a performer CMO with the necessary information and ability to do so. Amendment No. 8 amends section 280 to provide for extended collective licensing for performer CMOs and to bring an end to extended representation of unrepresented performers by producers’ CMOs in breach of the DSM directive. The proposed amendment to section 280 gives effect to EU law on extended representation and would bring an end to the unlawful extended representation currently arising under the Act. A small additional amendment, No. 9, proposes to change section 281 in consequence of this proposal, if accepted. In brief, before the passing of the DSM directive, EU law was agnostic on whether member states made provision for mandatory or extended representation rights for CMOs. It permitted but did not mandate the administration of rights of unrepresented rights holders to protect their interests pending the appointment of a CMO or a decision to self-represent. It ensured everyone was represented or allowed to self-represent if they wished. The collective rights management directive prescribed the nature and effects of the authorisation to be obtained from rights holders by the CMOs in circumstances where national law did not provide for mandatory, extended or presumptive authorisation. The regulations implementing the CRM directive gave effect to those provisions. However, the directive left it open to member states to make provision for mandatory, extended or presumptive authorisation of representation by operation of law. A detailed explanation of the law in this regard is set out by Ms Justice Costello in her judgment for the Court of Appeal in Recorded Artists Actors Performers Limited v. Phonographic Performance (Ireland) Limited in 2023. In the hearing of certain preliminary legal issues only, the judge rejected RAAP’s argument in that case to the effect that section 281 of the Act provided for a presumptive right to act on behalf of unrepresented performers. She said "if the legislature had intended to impose upon those performers representation which they had not sought nor consented to, one would expect this to have been clearly stated”. RAAP has now specifically asked that this amendment be made to ensure such a facility is clearly stated, not only on the basis that it is necessary to make the Article 8(2) right to equitable remuneration effective for performers as I have outlined, but also to bring an end to the contravention of the directive which arises under the current provisions of the Act and the absence of extended collective representation for performers. In that regard, the DSM directive represents a move from an agnostic position of EU legislation regarding extended licensing of intellectual property rights and refers to the usefulness, and sometimes necessity, of such provision. The focus of the DSM directive is the digital environment but the provisions for extended collective licensing are general in nature. We refer the Department to recitals 44 to 50 of the DSM directive. In recital 44, reference is made to collective licensing involving legal mandates or presumptions of representation as "a well-established practice in several Member States". As outlined in RAAP's July memorandum to the Department, such arrangements exist in at least 20 member states of the EU. Austria, Belgium, Croatia, Czechia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovenia and Spain all provide for mandatory collective management of this right, while Finland and Slovakia make use of a government-appointed entity to manage the rights. Recital 45 of the DSM directive reads: Extended collective licensing by collective management organisations and similar mechanisms can make it possible to conclude agreements in those areas where collective licensing based on an authorisation by rightholders does not provide an exhaustive solution for covering all works or other subject matter to be used. Such mechanisms complement collective management of rights based on individual authorisation by rightholders, by providing full legal certainty to users in certain cases. At the same time, they provide an opportunity to rightholders to benefit from the legitimate use of their works. Collective licensing based on authorisation by rights-holders does not provide an exhaustive solution for covering the rights of all performers to equitable remuneration for the reasons outlined in my introduction to these amendments. Article 12 of the DSM directive makes provision for member states to provide for extended collective representation. It does so conditional on the following safeguards: that the CMO is sufficiently representative, on the basis of its mandates, for the rights under management; rights-holders are guaranteed equal treatment under the scheme; rights-holders who have not given explicit authorisation may quickly and easily opt out of collective management; and effective publicity efforts are undertaken by the CMO to inform rights-holders of their rights, the default administration of them and their right to opt out of the scheme. As the Act is currently structured, a producers' CMO is put in control of the collection of licence fees to be shared with performers, not all of whom will be represented.

I thank the Deputy for these amendments; however, they go beyond the scope of this Bill. They seek to amend the Copyright and Related Rights Act to state which collective management organisation has the ultimate decision-making authority as to how equitable remuneration is divided among either performers or producers. This extends beyond the scope of the Bill. This matter was the subject of a long, but now concluded, court case, and the Bill does not seek to address this. The amendments make reference to the collective rights management directive. I assure the Deputy that this directive applies in Ireland. It was transposed by the CRM regulations of 2016. These regulations set out the rules that must be followed by collective management organisations registered with the Intellectual Property Office of Ireland, IPOI. These rules are not optional; they are the law. Each year, every CMO must submit a detailed dossier on its membership, finances, rules of procedure and so on, and these are examined by the Intellectual Property Office of Ireland. The regulations also establish clear rules on transparency of any deductions made. The CRM directive already requires CMOs to take steps to ensure that rights-holders who do not come forward to collect their remuneration are sought out, and the information on unclaimed amounts is made publicly available. Where there is any doubt on this, the IPOI has powers to request further information. The Copyright and Related Rights Act provides the IPOI with power to deregister any CMO that is found to be non-compliant. As I have stated previously, the law is clear that it is up to an individual rights-holder to choose to assign their rights to a CMO of their choice, or not to, as the case may be.

The Minister of State said these amendments are outside the scope of the Bill. Obviously they are not because they have not been ruled out of order. They have been found to be in order. The matter is within the scope of the Bill because we are talking about CMOs representing both the producers and the performers. Part of this has to do with who represents the unrepresented, those who have opted out of the CMOs and who are not tied in. As it currently stands, they are represented by the producers. That is like the employer representing the employee in a labour dispute. It is in some ways bonkers. The amendment is to set out quite clearly that the CMOs represent the performers in this instance. The reason is tied to the judgment from Ms Justice Costello in which she indicated that the reason she found against RAAP at that stage was that it had not been clearly stated in law. I cited this finding before. It states: "If the legislature had intended to impose upon those performers representation which they had not sought nor consented to, one would expect this to have been clearly stated". This is trying to ensure that it is clearly stated so there is no confusion and it is not the employer representing both sides in disputes. In this case, it ensures that the correct remuneration is given to both sides. We cannot ensure that happens if we have both sides represented by the same person.

Does the Minister of State wish to respond? No. Deputy Ó Snodaigh has a further two minutes, if he wishes.

I could go on and on.

The Deputy does not have to.

I am trying not to delay. As the Act is currently structured, a producers' CMO is put in control of the collection of licence fees to be shared with performers, not all of whom will be represented. In circumstances where the Act does not give performers' CMOs an ability to carry out extended collective licensing, and in the absence of an arrangement between the producers' CMO and the performers' CMO, the producers' CMO conducts extended collective licensing of the rights of unrepresented performers without authorisation and without being in a position to satisfy any or most of the preconditions laid down in the directive for extended collective licensing. This situation contravenes the directive and the Act does not currently facilitate a performers' CMO to step in to cure the contravention unless the producers' CMO makes a contractual arrangement to that effect. That breach of EU law must be brought to an end by the Bill. That is why the amendments were set down. A performers' CMO can satisfy the safeguards conditioning the grant of extended licensing rights for performers. The amendment provides for the grant of registration of a licensing body in respect of a scheme providing for extended licensing rights on the basis of evidence demonstrating compliance with the required safeguards. The controller remains in the role of supervisor of a CMO’s compliance with its statutory requirements under Article 33 of the CRM regulations. Insofar as a concern has been expressed by the Department as to the right of dissociation correlative with the constitutional right of association, no such concern can arise in circumstances where exercise of extended collective licensing obtains unless and until such a performer grants explicit authorisation to the CMO, to a different CMO or opts out of collective management altogether. It is an entirely protective, non-coercive power which is necessary to properly protect and administer performers' rights to equitable remuneration.

I move amendment No. 7: In page 4, to delete lines 19 to 36.

I move amendment No. 8: In page 4, between lines 36 and 37, to insert the following: “Amendment of section 280 of Principal Act 4.Section 280 of the Principal Act is amended by— (a) the insertion of the following paragraph after paragraph (g) of subsection (6): “and (h) where the scheme is intended to include and to be operated not only on behalf of rightsowners who have authorised the applicant to manage the kind of rights intended to be covered by the scheme and that are conferred by this Act, but also on behalf of rightsowners who are unrepresented by any licensing body, information sufficient to satisfy the Controller that: (i) the applicant is, on the basis of its mandates, sufficiently representative of rightsholders in the relevant type of works or other subject matter and of the rights which are the subject of the scheme, in the State; (ii) all rightsholders are guaranteed equal treatment, including in relation to the terms of the licence; (iii) rightsholders who have not authorised the applicant may at any time easily and effectively exclude their works or other subject matter from the scheme; (iv) appropriate publicity measures have been taken, starting from a reasonable period before the works or other subject matter are to be used under the scheme, to inform rightsholders about the ability of the applicant to license works or other subject matter, about the licensing taking place under the scheme and about the options available to rightsholders as referred to in subparagraph (iii); and (v) procedures exist for the negotiation of an equitable split of the cost and any benefit of representing rightsholders who have not authorised any licensing body to manage the rights referred to in this subsection (f) with any other licensing body which applies for registration under this section and which satisfies the conditions of subsection (f)(i) to (iv).”, and (b) the insertion of the following new subsection after subsection (6): “(6A) On the registration or renewal of a registration of as a licensing body: (a) the applicant shall not only have the right to manage the rights of the rightsowners who have authorised it to so act but shall have the right to manage the rights of unrepresented rightsowners in accordance with the scheme in so far as such rights are covered by the scheme as registered by the Controller; (b) the Controller shall issue to the applicant a certificate of registration in such form as the Controller shall determine.”.”.

I move amendment No. 9: In page 4, between lines 36 and 37, to insert the following: “Amendment of section 281 of Principal Act 4.Section 281 of the Principal Act is amended by the substitution of “otherwise authorised it, as specified in that certificate” for “exclusively licensed it, as specified in that certificate”.”.

I move amendment No. 10: In page 5, between lines 8 and 9, to insert the following: “Amendment of section 288 of Principal Act 5.Section 288 of the Principal Act is amended by the insertion of “, or, it is incorporated in a sound recording which qualifies for copyright protection under Part II of this Act” after “this Chapter”.”. This discrete additional amendment to section 281 is to address the way the Bill, as proposed, is not yet compliant with EU law on the shared right to equitable remuneration under Article 8(2) of Directive No. 2006/115 as declared by the court in RAAP v. PPI and Ireland. As stated in the case, Article 8(2) of the directive, which provides for the right to equitable remuneration, must be interpreted consistently with the provisions of the WIPO Performances and Phonograms Treaty, WPPT, to which the EU is a party, and which, under Article 216 of the Treaty on the Functioning of the European Union, TFEU, has primacy over secondary legislation, such as directives. The court went on to construe that the provisions of the WPPT in light of the directive falls to be interpreted. It held that the qualification criteria for the right provided in the WPPT are imported from the Rome Convention, which in turn provides for the right to attach to all performances incorporated on a sound recording that is protected by copyright in a contracting state. Irrespective of the place of residence or domicile of the performer or the place where the performance takes place therefore, a performance attracts a right to equitable remuneration for the performer who gave it, once it is incorporated on a protected sound recording. Accordingly, the connecting factor for qualification of performers for the right to equitable remuneration is the incorporation of the performance in question in a qualifying sound recording. An amendment giving effect to this criterion of qualification for the right of performers to equitable remuneration is not only required to implement Article 8(2), when it is properly construed in light of the WPPT, but it is the only way in which the Bill can be brought into compliance with the court's second basis for finding the current qualification provisions are inconsistent with the requirements of the directive. That second basis is that the fundamental characteristic of Article 8(2) is that it is a shared right, which does not admit of being enjoyed, in any circumstances, only by phonogram producers. The change proposed to section 288, if made, would achieve a common basis for qualification for both sets of rights, namely, qualification of the sound recording for copyright protection as required by EU law. Apart from bringing the section into complete compliance with the law as it has been declared by the CJEU to be, bringing the qualification for the right into complete alignment as between performers and producers would obviate any concern that might otherwise remain on the producer side that they need to police performer qualification for the right. That in turn would militate towards a right, more simplified and more efficient process. At the end of the day, we are trying to ensure that in recordings and performance, both sides get what is due to them in a 50-50 split in total and that there is no deviation from that. It is a recognition that exercising the right to remuneration sometimes has to be qualified, protected and clearly stated in law, so there is no attempt by anybody to enrich themselves and bypass the order of things. We have already seen that both performers and producers have been under severe strain in recent years because of the change in the way people listen to their music and the way copyright has been flouted around the world on media channels. In some ways, this is the clear-up. It is a way to ensure there is a stream of funding for those who are the artists and creatives and are ensuring we can enjoy different music, sounds and expressions. It is also a recognition that those who produce the music also have rights. It is not just one side. I might have come across as reflecting the rights on one side, but the rights of performers are usually the ones that are eroded. They are usually the ones who suffer in the relationships where the greater portion of what is due to them seems to go missing or is reallocated elsewhere rather than being a straight 50-50 split, as it should be. The intention of all ten amendments is to clarify in law. It is a pity that the Minister of State, thus far, has not been willing to take them on board. I hope she will reconsider and take at least this one amendment. It would send a useful message in itself that would address some of the concerns that are out there.

I thank the Deputy for his amendment and for raising this point. It has been raised with my officials by RAAP, an organisation that represents performers, in a submission and in a meeting with it. The Government attaches great importance to ensuring Ireland’s national copyright law is in line with our obligations under international and EU law. This is a point which, to my knowledge, has been raised before. It is also not clear what, if any, impact it may be having. However, it certainly merits further detailed examination, which is now under way. I assure the Deputy that if there is a finding that there is any inconsistency between the Bill and international law, this will be addressed through a further amendment.

I welcome the fact that the Minister of State is taking on board that there may be a need for further examination. In some ways, when you put amendments, you hope you are proven right but you are also hoping you are proven wrong because that means the officials and those who are better at drawing up legislation have covered the angles where, on this side of the House, we sometimes see an issue, and have tried to plug a hole that has been exposed. In this instance, I am more confident in these amendments than some of the amendments I tabled in the past over the vast time I have spent here. I was not always as confident as I should have been in tabling those amendments but, in this case, the amendments have been well-crafted and well-considered. They are coming from practitioners, such as the collective management organisations, CMOs, which understand the intricacies of copyright, some of which is very intricate. It is not for you or me. Maybe that is one of the reasons there have not been as many referrals to the controller. Maybe it is because people have not been able to understand the full effect of the failure to get the proper remuneration and income they are due. I hope that before this goes any further than the Dáil and into the Seanad that further examination and additional stress tests are done on the legislation the Minister of State is proposing. Maybe in the Seanad they will take on board some of the proposals I have put here.

Given the already considerable delays in getting this small but complex Bill to this stage, it cannot be further delayed. It is a complex point on the interplay between national, EU and international copyright law and international conventions. It requires careful consideration if required, to ensure no unintended consequences arise from any amendments.

I admit like everybody else it is a complex area in some ways. That is why some of the explanations to the amendments can sometimes be a bit convoluted because it is a difficult area of law. As the Minister of State pointed out, it is trying to ensure that we transpose into law the full effects of an EU directive and that we get it right. In this instance, I do not think we have got it right. We did not get it right in the past. That is why we are at this stage. We are addressing failures in the past. We may be back here again. While I firmly believe the intention is correct, the full effect of it will not be. I am still gobsmacked at the referral of anybody to court when there is an alternative mechanism available, which does not fall foul of the EU directives.