Ireland provides full retroactive protection to works, phonograms and performances. Section 174 of part VI of the Industrial and Commercial Property (Protection) Act 1927 Preservation of existing copyrights states, inter alia: "(1)The repeal of the Copyright Act 1911 by this Act shall not save as is otherwise expressly provided in this part of this Act add no, derogate from, or otherwise affect any copyright or other right acquired before the 6th day of December 1921, under or by virtue of the Copyright Act 1911, or any order made thereunder." The Copyright Act 1963 makes new provision in respect of copyright and related matters. Section 38 of part VIII of the Copyright Act 1963 states: "(1)Except in so far as it is otherwise expressly provided in this Schedule, the provisions of this Act apply in relation to things existing at the commencement of those provisions as they apply in relation to things coming into existence thereafter. "(2)For the purposes of any references in this Schedule to works, sound recordings or cinematograph films made before the commencement of a provision of this Act, a work, recording or film, the making of which extended over a period, shall not be taken to have been so made unless the making of it was completed before the commencement of that provision." The Performers Protection Act 1968 prevents the making of unauthorized records, films and broadcasts of performances. Section 43 of the Copyright Act 1963, confers power on the Irish Government to extend benefit of this Act to other countries; section 12 of the Performers Protection Act 1968, provides similar powers in respect of performances. The Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996 (which provides, inter alia, protection to works and phonograms) and the Performers' Protection (Foreign Countries) (Amendment) Order 1996 S.I. No. 39 of 1996 (which provides protection for performances) extend protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1996.

The exceptions to retroactive protection referred to in paragraph I of Section 38 of Part VIII of the Irish Copyright Act are to be found in the First Schedule of the Act which relates to Transitional Provisions. (A copy of the First Schedule of the Act is attached). (i)The interpretation of these provisions is a matter for the Courts and, as far as we can ascertain, there has been no case law on these transitional provisions in the Irish courts. Until such time as there is, the interpretation of the precise content of the provisions will have to remain open. (ii)The Performers' Protection Act, 1968 does not apply to pre-existing performances.

Computer programmes are protected as literary works in Irish law. Council Directive No. 91/250/EEC which protects computer programmes as literary works was transposed into Irish law by S.I. No. 26 of 1993 European Communities (Legal Protection of Computer Programmes) Regulations 1993. This protection for computer programmes as literary works was further encompassed in the Copyright (Foreign Countries) Order 1996 S.I. No. 36 of 1996, which extends copyright protection to countries which have ratified or acceded to the Marrakesh Agreement Establishing the World Trade Organization Done at Marrakesh on 15th day of April 1994. Section 2(1) of the Copyright Act 1963 defines "literary work" as including any written table or compilation. The acts restricted by the copyright in a literary, dramatic or musical work are detailed in section 8(6) of the Act. Directive 96/9/EC of the European Parliament and of the Council on the Legal Protection of Databases must be implemented into Irish law. This will be done in the context of our new Copyright Act which is currently being prepared.

There are no provisions in Irish law at present which provide a rental right for producers of sound recordings, cinematographic works and computer programmes. This is another area which is being carefully examined in the context of Ireland's current overall review of copyright and the preparation of our new Copyright Act. Indeed, EU Council Directive of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be implemented into Irish law in this new legislation.

(i)With regard to the expected timetable for Ireland's new legislation, Ireland is currently in the process of drafting Heads of Bill for the Parliamentary Draftsman, who will draw up an appropriate bill. It is our intention to have these draft Heads completed and submitted to the Parliamentary Draftsman by the end of this year. A bill will then be brought before Parliament as soon as possible thereafter. Additional resources have been assigned to this task and Ireland is treating this as a matter of priority. (ii)With regard to any changes that will be made to Irish Law, it is not possible to give an absolute indication of what will be contained in the final text, as this matter must go before Parliament. However, the bill will take account of the necessity to comply with our international obligations.

The UK has no blank tape, equipment or any other levy for private copying, which is why it answered that there are no provisions relating to the distribution of levies.

The UK term of protection for producers of sound recordings and performers is 50 years from the end of the calendar year in which the recording is made (i.e. fixation) or the performance takes place respectively, that is the minimum term set out in Article 14.5 of TRIPS. If during this period the recording, or a recording of the performance, is released, the term expires 50 years from the end of the calendar year in which it is released. US producers and performers will only receive a term longer than 50 years, which can apply where a recording is not released in the year it is made or the year of the performance, if the term is not longer than that applying in the US.

Under UK law, copyright in a sound recording gives the owner of copyright the exclusive right to copy the work (see Section 16(1)(a) of the 1988 Act) and action is possible for copyright infringement where unauthorised copying of the sound recording occurs. Moreover, Section 16(3)(b) specifically states that this restricted Act applies whether done directly or indirectly and regardless of whether any intervening Acts infringe copyright. This will cover copying of a sound recording from a digital transmission.

The UK has already said in its original answer that the reproduction right for an owner of copyright in a sound recording will cover copying of a sound recording from a digital transmission. Copying of a sound recording from a broadcast, whether digital or otherwise, will also be covered by the reproduction right for the same reasons as set out in the original answer.

Copyright works, including phonograms (which are treated as such - see answer to question 1), and performers from other countries are protected as explained in answer to Question 1. There is no single date to which the protection extends back since protection is always future protection but is given in respect of an existing copyright work or recording of a particular performance after it has qualified for protection in respect of any period which continues to subsist calculated from the date prior to qualification on which the work or recording of that performance was made, as required by TRIPS. Whether protection exists therefore depends upon whether the term, which would have applied to a particular work or recording of a performance had it always been protected, has expired. Existing sound recordings made from at least as long ago as 1946 may be protected in the UK. The Copyright, Designs and Patents Act 1988 (which has been amended by the Duration of Copyright and Rights in Performances Regulations 1995) in paragraph 12 of Schedule 1 confirms the term of protection in the Copyright Act 1956 for sound recordings made before 1 June 1957 (i.e. the date of commencement of the 1956 Act). The 1956 Act in paragraph 11 of Schedule 7 gives a term of 50 years from making for sound recordings made before commencement of the Act. The 1995 Regulations may result in sound recordings made before 1946 being protected. For literary, dramatic, musical and artistic works, under the 1995 Regulations mentioned above, protection may apply to existing works where the author died 70 years ago, i.e. in 1926. The 1988 Act, which the 1995 Regulations amend, confirmed the protection for works made before commencement of that Act in paragraph 12 of Schedule 1 by reference to Sections 2 and 3 of the 1956 Act, which should be read in the light of the transitional provisions in Schedule 7 of the 1956 Act with regard to works existing before commencement of the 1956 Act. The Copyright (Application to Other Countries) Order 1993 as amended by the 1995 Order mentioned above gives effect to retroactive protection, subject, of course, to the term of protection having not already ceased, for all copyright works from all WTO countries. The 1995 Order does not restore any copyright because Article 18 of Berne does not require works that have already fallen into the public domain through expiry of copyright protection to be protected. Article 7 of the 1993 Order (amended by the 1995 Order) gives some protection to those who have or may be about to use a work newly protected by copyright. Article 7 allows the continued doing of certain acts unless the copyright owner pays compensation as settled by arbitration in the absence of agreement. How long the Act can be continued would depend on whether the Act fell within the scope of the Article. It would ultimately be for the courts to decide whether this is the case in any particular circumstances. As far as performers rights are concerned, the 1995 Order mentioned above in reply to Question 1 grants reciprocal protection, i.e. the same as that applying under Part II of the Copyright, Designs and Patents Act 1988 to UK performers (except where there are limitations on this reciprocity as is indicated in the relevant Order). TRIPS Article 14.6 requires Article 18 of Berne to extend only to those rights of performers in sound recordings granted by TRIPS. By definition, the only right relevant here is the right to authorise the reproduction of a fixation of a performance. Section 180(3) in Part II of the 1988 Act ensures that insofar as rights in recordings are concerned, those rights apply after qualification to recordings of performances made prior to qualification except that no act carried out in relation to such a recording either prior to qualification, or after qualification but in pursuance of arrangements made before qualification, can be an infringement of rights arising after qualification. As with copyright, the extent to which existing performances are protected depends on whether the term of protection, had the performance always been protected, has already expired.

It is the UK's understanding that questions relating to the enforcement of intellectual property rights are to be considered later in the scrutiny process. Nevertheless, we would refer you to the UK's response to the checklist on enforcement which will be circulated shortly for details on the enforcement of intellectual property rights in the UK. Should you require any further clarification or if you have any follow-up questions then we would be pleased to discuss them on a bilateral basis or later in the scrutiny process when issues relating to enforcement are addressed.

(a) Why no national treatment? The Finnish levy system is a sui generis arrangement. There is no international regulation of such levies. The system is outside the intellectual property rights. The Finnish Government and Parliament explicitly rejected the idea of rights in this field. The reason was that when blank recording media are manufactured or imported there is no work, no author, no copying involved. Instead of a copyright based system a very specific system was established. On the level of the legislation there is an obligation to manufacturers and importers to pay the levy. This obligation was enacted in accordance with the clause in the Constitution concerning public taxes. The Ministry of Education issues annually a decision on the rate of the levy. No one can claim a share of the levy. (b) Distribution to foreign authors. A major part of the proceeds of the levy is used for collective cultural purposes. The Finnish Composers' International Copyright Bureau Teosto includes a part of the audio levy in its individual distributions, and allocates some amounts to seven foreign organizations on the basis of reciprocal private agreements between Teosto and these organizations.

Finland does not apply any "rule of the shorter term" to phonograms and performances from other WTO Members concerning rights granted in the TRIPS Agreement.

(a)Direct and indirect reproduction According to Article 46 of the Finnish Copyright Act, a phonogram may not be copied or distributed to the public until 50 years have elapsed from the year during which the recording took place. This right in the same way as the right of reproduction of authors has always been interpreted as covering both direct and indirect reproduction. The distance between the place where the original exists and the place where the copy is established has no significance. (b)Reproduction by digital transmission The general rule applies.

We do not call giving full term of protection "retroactive". It is rather a question of whether all existing subject matter, within the limits of the term of protection, is protected. As regards works, the protection through TRIPS Article 9.1 is guaranteed by the law referred to in the reply to question 1(a) above. As far as performers and producers of phonograms are concerned, the obligations of Article 14.6, second sentence, were explicitly met in the context of the enactment of the Act prolonging terms of protection. The Act entered into force 1 January 1996.

The provisions of Article 12 are in full conformity with Berne Article 9(2) and TRIPS Article 13. The concept of "few copies" was narrowed by the Amendment of 1980 to mean "even fewer", single, copies for private use. The meaning of "private use" was in Finland already before 1980 rather narrow. In 1980 it was narrowed further: only natural persons may have the advantage of making copies for private use. The firms, companies, associations and other legal entities were excluded from those who may benefit from this provision. The amendment launched collective management in the field of reprographic copying in the educational activities, public administration and business life. Furthermore, no other provisions concerning fair use or fair dealing open any possibilities to make copies without authorization.

The clauses mentioned in the question are not compulsory licences but extensions of agreed collective licences. They concern always mass uses which would be impossible to be licensed transaction by transaction. The condition for application of these clauses is always an agreement between an organization representing a large number of rightholders and the user. The terms agreed by the organization apply to the use of the rightholders not directly represented by the organization. Because the collective management organizations are professional and efficient negotiators, they try and normally succeed in agreeing on terms which are reasonable for the rightholders they represent directly on the basis of binding mandates. The terms are as reasonable for the outsider. The organization has negotiated also on behalf of the outsider. In certain respects the rightholders not represented by the organization are in a better position than those who were directly represented on the basis of the mandates. Article 26 of the Finnish Copyright Act contains general provisions on extended collective licence provisions. The outsider has to be accorded the same treatment which the organization accords to those who had given them mandates. Secondly, the outsider has always a right to claim individual remuneration, even in cases when the organization does not accord such a position to the rightholder on behalf of whom it acted on the basis of mandates or transfers of rights. This claim is valid three years from the relevant Act of use.

(a) Public display vs. television Paragraph 2 of Article 25 of the Finnish Copyright Act demonstrates that the exhaustion of right of display in Article 20 does not extend to television broadcasts or rebroadcasting. (b) Public performance vs. broadcasting Paragraph 3 of Article 21 excludes television because the most of the programme contents in television is considered to be cinematographic works, not only films but also most of other contents. As concerns sound radio broadcasts, special school radio programmes included in the programme flow of the broadcaster of that time, were mentioned in the 1950's in the legislative history of paragraph 1 of Article 21. Everything used in the sound radio broadcasts, even in the school radio programmes has been systematically licensed and agreed. Paragraph 2 of Article 21 has never been interpreted to cover broadcasting. No rebroadcasting or retransmission practices fall under Article 21.

Compilations of data or other materials are protected by copyright if they are works in the copyright sense. The normal requirements for eligibility, the criterion of originality, apply. The sui generis right under Article 49 is an additional specific right. It does not exclude copyright in any database. The criterion of eligibility is completely different from that of copyright. It is lower as the sweat of the brow principle. The right is accorded to any maker of catalogue if a large amount of information items are compiled within the product. This form of protection has no relation to the protection provided for databases under TRIPS Article 12.

9. Please explain the difference in the type of use involved between the first and second sentence of Article 4 of the Copyright Act. In particular, please explain: the meaning of “using freely”; and whether the concept of “new and independent work” differs from a copyrightable adaptation generally.