Last Wednesday, 9 October 2024, I was at the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media, for a debate on the Broadcasting (Amendment) Bill 2023 (screengrab from here, left).

This succinct and welcome Bill aims to amend the Broadcasting Act 2009 to provide for greater public access to the archives of Ireland’s national public service broadcaster, Raidió Teilifís Éireann (RTÉ). This is some of my opening statement (as delivered (with added links); the more extensive written version is here (pdf):

… I was the chair of the Copyright Review Committee. Our report, Modernising Copyright, led to the enactment of the Copyright and Other Intellectual Property Law Provisions Act 2019. One of the aims of our report was to enable users to have access to, and to use, copyright material “in line with the greater public interest”, as it is put in the Bill. For this reason alone, I commend the Bill. It is a crisp Bill with two key subsections. I will make some brief comments about drafting issues.

Section 1(a) of the Bill inserts into section 89 of the Broadcasting Act 2009 a general duty on RTÉ to make archives available for inspection and publication. This is a welcome amendment in principle. However, I wonder if adding it to section 89 is the best location. That section relates to the powers and obligations of the Director General of RTÉ. As observed by Mr Ryan [Principal Officer in the Broadcasting Policy Unit of the Department of Tourism, Culture, Arts, Sport and Media] in the first session and notwithstanding the analogy drawn by [Bill sponsor] Deputy [Patrick] Costello with the Director General of the National Archives, putting the amendment there seems out of place. On the other hand, section 26 of the 2009 Act relates to the functions of RTÉ. It is more appropriate to locate the amendment in section 26 because it relates to the functions, rather than section 89, which relates to the Director General.

In respect of that subsection, the duty is to make archives available for inspection, but this is not very helpful for those inspecting the archives unless they can also make use of the material inspected. I can go in, look and inspect; but then I want to be able to use it. I would amend the start of the subsection to provide for a duty to make archives available for inspection and use.

There are references throughout this amendment simply to “archives”, whereas the Act it amends refers throughout to “archives and libraries”. Given that RTÉ pretty indiscriminately has things in archives and in libraries, if the access obligation is to mean anything, it should reflect – and refer to both – archives and libraries.

I agree with Mr Ryan, that, on the basis of the commentary from Department and the submissions made by RTÉ, this section should not disturb the terms and conditions on which RTÉ has licensed commercial content from third parties. The Bill can only relate to content created by RTÉ; it cannot relate to third-party content. Therefore, I agree that a carefully drawn distinction on this basis should be included in these amendments.

One of the obstacles to making such content freely available is the Copyright and Related Rights Act, 2000. If RTÉ was to assert its copyright in its content, it would make access difficult if not impossible. It might be better, therefore, if the various ways in which the Copyright and Related Rights Act can prevent this access were to be specifically excluded in the amendments. In particular, given that if anybody does manage to get access to material in the archives, they would be able to rely on the exceptions and limitations in the Copyright Act, that should be explicitly stated in the amendment as well. Rather than specifying the two grounds for access that Deputy Costello refers to, it should instead state “for uses in the greater public interest, including those uses comprised in the exceptions and limitations permitted by the Copyright and Related Rights Act, 2000”. All of my recommended amendments arising from these comments are consolidated in the appendix to the more extensive written version of these remarks [pdf].

Those responsible for the RTÉ archives has been very helpful to me in the past. I look forward to working them in the future. I commend Deputy Costello on his initiative in introducing this Bill. I recommend to the committee that it should decide that the Bill should proceed to Committee Stage, where the kinds of technical drafting amendments I have suggested and where, more importantly, the important policy considerations that are being discussed today can be properly considered. Folding it into the context of Head 111 of the General Scheme of a Broadcasting (Amendment) Bill, 2024 published yesterday, would also be a welcome way forward.

The full debate is here (text | video); my contribution is here (text | video (from 1:37)).