Month: March 2010

Marriage by default and the Civil Partnership Bill 2009

[Updates at end.] The Civil Partnership Bill 2009 is one of the most significant pieces of legislation ever proposed in Ireland and, if passed, will rank alongside the Succession Act 1965 and the Family Law (Divorce) Act 1996 in that context. Introducingthe second stage of the Bill in the Dáil, the Minister for Justice, Equality and Law Reform said:

My own party’s 2007 manifesto contained the clear commitment that, “based on our republican ethos and building on the agenda for equality to which we are committed” Fianna Fáil, if re-elected, would introduce civil partnership legislation in order that same sex couples could live in a supportive and secure legal environment. Today, through the Civil Partnership Bill 2009, the Government responds to these commitments.

The Bill has attracted a good deal of controversy and debate: almost all relating to the provisions affecting civil partnership. It is understandable that the elements of the Bill most relevant to same-sex couples will consume most of the attention given to the legislation, but this is at the expense of provisions which are almost as significant and which affect all genders and orientations.

Marriage, though mostly thought of in terms of emotional bonds and religious significance, is primarily a legal status which confers benefits and imposes obligations on the parties to the marriage. Marriage has legal consequences for a wide range of personal issues including finances, children, inheritance and domestic violence.

Most of these benefits and obligations do not arise in the case of non-marital relationships, especially when there are no children of the relationship. The phrases “common law wife” and “common law husband” have no legal significance. The Bill, however, proposes to legislate for a form of common law marriage by imposing consequences on parties by default; most likely without the knowledge of many persons likely to be affected.

Part 15 of the Bill deals with the rights of cohabitants, defined as adults living together as a couple in an intimate and committed relationship. You might wonder what constitutes “an intimate and committed relationship”. It is not defined, but section 170(2) sets out the criteria to be considered when determining whether or not two persons are cohabitants. Subsection (3) clarifies that sexual activity is not a determinative factor.

The consequences of the Bill arise in the case of “qualified cohabitants”: cohabitants who, immediately before their relationship of cohabitation ended (whether through death or otherwise) were living together as a couple for three years or more. This qualification period is reduced to two years when the couple have had a child. When a cohabitation relationship breaks down, a qualified cohabitant will have two years in which to bring applications to the courts for maintenanceproperty and/or pensionadjustment orders, similar to those applications a separated spouse or civil partner can make.

It is claimed that section 199 of the Bill allows cohabitants to opt-out of Part 15. That section provides:

Notwithstanding any enactment or rule of law, cohabitants may enter into a cohabitants’ agreement to provide for financial matters during the relationship or when the relationship ends, whether through death or otherwise.

Such an agreement can provide that neither party may apply for relief in the terms outlined in Part 15. However, for the agreement to be valid certain criteria must be satisfied:

  1. the cohabitants must each receive independent legal advice before entering into it, or receive legal advice together and waive in writing the right to independent legal advice;
  2. the agreement must be in writing and signed by both cohabitants; and
  3. the general law of contract must be complied with.

So: anyone wishing to cohabit who does not want Part 15 to apply to them will have consider the legislation within the first 2 or 3 years of cohabitation, visit their solicitor(s) and enter into a quasi-prenuptial agreement.Ironically, the legal status of prenuptial agreements in Ireland remains uncertain, yet the same type of agreement is being legislated for in the case of parties who have not entered into a formal relationship.

Even if a cohabiting couple have the foresight and diligence to enter into a cohabitation agreement, a trapdoor awaits in section 199(4):

The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.

Therefore, a qualified cohabitant can never be certain as to whether Part 15 will apply or not; at least not until the relevant two/three years have passed from the breakdown of the relationship and an application can no longer be made for relief.

Two leading academics have publicly called on the Government to drop Part 15.

Ruth Deech, professor of law at London’s Gresham College, said the Irish law was set to be a “windfall for lawyers but for no one else except the gold-digger”. She said it was wrong to impose the penalties of a “failed marriage” on couples who may be trying out their relationship before marrying. “There should be a corner of freedom where couples may escape family law with all its difficulties. Cohabitation is not marriage, now or historically,” said Prof Deech, a vocal critic of regulating domestic partnerships.

While most family lawyers and academics here broadly welcome plans to protect vulnerable cohabitants, many have serious concerns over the detail. UCC law professor John Mee said the aspects of the Bill relating to cohabiting couples should be scrapped, as they could do more damage than good.

“The well-meaning, but seriously flawed, redress scheme should be scrapped and any immediate reform should be targeted on specific areas such as succession and taxation,” he said. “This kind of limited scheme may create a false sense of security for cohabitants, who may assume that the new law will protect them and fail to take steps to safeguard their separate property rights,” Prof Mee said.

Prof. Mee, who has written about the need for legislation to deal with cohabitation for a long number of years, outlines the difficulties as follows (The Property Rights of Cohabitees, quoted in the 10th Report of the All-Party Oireachtas Committee on the Constitution):

The whole question is a very difficult one, since people’s motives may change over time. Consider the case of a couple who move in together at an early stage in their relationship, seeing their cohabitation as a trial period before a possible marriage. If, for some reason (probably the reluctance of one partner) they never actually marry, they will not necessarily separate. Many of the cases in this area involve relationships which drift on for many years, even after it has become apparent that the originally envisaged marriage will never take place. Such a relationship begins as a ‘trial marriage’ and ends, in effect, as an alternative to marriage.

The All-Party Committee, having examined the issue of cohabitation, concluded:

It can be inferred that cohabiting heterosexual couples, who by definition have opted out of marriage, would expect the state nevertheless to respect their family life and protect it.

This may be correct, but how far would unmarried couples expect such protection to extend?

Part 15 of the Bill represents a significant change to the law and will affect a huge swathe of the population. It deserves to be drafted and debated as an independent piece of legislation.

Updates & more

  • The Irish Farmers’ Association called on the Government to withdraw Part 15 of the Bill (1 April 2010).
  • The IFA press release was followed very quickly by indications that the Government would change the name of the Bill to the Civil Partnership and Cohabitation Bill (4 April 2010). It may also lengthen the qualification period for cohabitants to five years.
  • Suzy Byrne has blogged about the IFA comments and the proposed changes over on Maman Poulet.
  • Prime Time ran a segment on 6 April 2010 covering Part 15 and featuring Professor John MeeMuriel Walls and Geoffrey Shannon. It was followed by a panel discussion with John WatersJohn Bryan and Ivana Bacik.
  • The Irish Times ran an editorial about Part 15 on 7 April 2010.
  • Dr. Fiona de Londras wrote about Part 15 over on the Human Rights in Ireland blog. She makes the case for default obligations, subject to an appropriate awareness campaign.

ECJ to decide on Irish hotel room royalties case

In general, if you want to show someone else’s media in public, you need a licence to do so. That licence can come from the copyright owner or, where the copyright owner has joined a copyright licensing body, that body has the power to grant collective licenses.

This collective licensing system enables shops, hotels, pubs and offices to use copyrighted materials on their premises without obtaining a licence from every songwriter, publisher or company to do so. These commercial venues must pay annual fees to the main Irish copyright licensing bodies (IMRO/MCPSI and PPI) in return for a licence which allows them to play music or use televisions on their premises.

A licence is required if the shop or pub merely tunes into the local radio station or cable news channel and does not create its own playlist. To take an extreme example: if a musician has joined IMRO and also happens to own a pub, that pub requires a licence even if it only plays looped recordings of the owner’s compositions, recorded exclusively in his or her home studio.

The extensive powers of copyright licensing bodies to extract royalties did not arise without controversy and IMRO appears to have found it necessary, in their FAQs, to offer an answer to the question: “Who says such a system is fair?”

If a commercial premises shows cable television, such as from BSkyB, it requires an additional licence in the form of a commercial subscription agreement, denoted by the presence of a pint-glass “bug” on-screen.

Hotel bars, nightclubs and common areas playing media require IMRO and/or PPI licences, but a licence is not required in respect of hotel rooms. This is provided for in section 97 of the Copyright and Related Rights Act 2000 which says that it is not copyright infringement to show media in sleeping accommodation or as part of the amenities provided exclusively or mainly for residents. The exemption does not apply where a specific charge arises for admission into that part of the premises where the broadcast is made. So, if you showed a Premiership football match in a residents’ lounge, but charged residents €1 per person to enter the lounge while the match was on, section 97 will not apply and a licence is required. (I have used the phrase “specific charge”, though section 97 refers to a “discrete charge”. This was actually the source of debate and it appears that it was intended to use the phrase “special charge”, but “discrete” survived enactment.)

Section 97 was included in response to lobbying by the Irish Hotel Federation. The reasoning behind the exemption is that royalties should arise where there is a public performance of a copyrighted work, but a guest in a hotel room is in a similar position to an individual in their private living room and therefore no public performance takes place. However, the European Court of Justice has previously decided that public performance of a recording can take place in a hotel room.

In a recent case involving a hotel in Kerry, section 97 was unsuccessfully pleaded in defending an action taken against a hotel which had shown Premiership football matches in the residents’ lounge without having the appropriate licence from BSkyB. Details of the arguments advanced are not available but it is possible that section 97 was found not to apply because the bar was not provided only for the use of residents (ie. non-residents could enter the bar and watch the matches).

PPI, the copyright licensing body responsible for collecting royalties in respect of copyright in recordings, wants the section 97 exemption to be abolished and taken legal action against the State to that end. Ms. Justice Finlay-Geoghan has referred a number of questions arising from the proceedings to the ECJ. According to the Irish Times:

Among the issues the ECJ will have to decide is whether a hotel operator, as a result of providing TVs and radios in guestrooms, is a “user” of copyrighted music that can be played in a broadcast for the purposes of EU directive 2006/115/EC. If the operator is such a user, the ECJ will then have to decide whether the same directive require the operator to pay a charge additional to royalties already being paid by TV and radio station operators. The ECJ also has to decide whether hotel operators are exempt from such payments on grounds the playing of such music is for “private use” as provided for under the same directive. A further issue is whether the directive permits the exemption of hotel operators from paying if the music is played by means other than TV or radio.

The IHF devoted a section of its 2009 annual report to copyright issues, stating:

The battle to protect our members against attacks by copyright and neighbouring rights holders continues … It is our advice that the state has a good case to defend. But the process may not end there as there is a view that this is an attempt by the major international record companies to have the case referred to The European Court of Justice with the hope of getting a favourable decision which would have Europewide effect … Should [PPI] be successful in their pursuit it would result in an annual cost to hoteliers and guesthouse owners of over €3m per year. The Council of the Federation recognises the risks in this case and have obtained legal advice on how to deal with this matter as it progresses.

Update (19 April 2010)

The questions addressed by Ms. Justice Finlay Geoghegan to the ECJ are as follows:

(i) Is a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal a “user” making a “communication to the public” of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Codified Directive 2006/115/EC of the European Parliament and the Council of 12th December, 2006?

(ii) If the answer to paragraph (i) is in the affirmative, does Article 8(2) of Directive 2006/115/EC oblige Member States to provide a right to payment of equitable remuneration from the hotel operator in addition to equitable remuneration from the broadcaster for the playing of the phonogram?

(iii) If the answer to paragraph (i) is in the affirmative, does Article 10 of Directive 2006/115/EC permit Member States to exempt hotel operators from the obligation to pay “a single equitable remuneration” on the grounds of “private use” within the meaning of Article 10(1)(a)?

(iv) Is a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus a “user” making a “communication to the public” of the phonograms within the meaning of Article 8(2) of Directive 2006/115/EC?

(v) If the answer to paragraph (iv) is in the affirmative, does Article 10 of Directive 2006/115/EC permit Member States to exempt hotel operators from the obligation to pay “a single equitable remuneration” on the grounds of “private use” within the meaning of Article 10(1)(a) of Directive 2006/115/EC?

Law Society council ensures it can proceed without financial restraints

I wrote previously about the professional indemnity insurance crisis that hit the solicitors’ profession in late 2009. The solution adopted was a guarantee by the Law Society in favour of a specialist insurance broker, the SMDF.

Before the deadline for renewal of insurance, many speculated that the crisis was a result of the economic turmoil generally or the actions of a very small number of solicitors. The guarantee was kept secret until well after that deadline passed. The Society then emailed its members outlining the real reason for the crisis: the SMDF could not offer insurance without plugging a hole that had emerged in its finances when one of its financial investments lost between 97-100% of its value. The Society’s guarantee would allow the SMDF to borrow the sum lost.

Many members of the Society (ie. solicitors) were incensed to learn the details of this rather shocking development and of the similarly disastrous investment by the Society in a property neighbouring its Blackhall Place headquarters, purchased for €22.4 million in 2006 and valued at €7 million in 2009. An EGM was called to discuss both incidents and various motions were to be debated seeking to limit the ability of the Society to enter into such transactions.

The motions were strongly defeated at the EGM. More than 100 signatories called for the convening of the EGM, yet each motion received the support of only 21 – 39 votes. The motions were soundly defeated, though that does not quite equate to the guarantee being “endorsed”, as reported by the Irish Times.

The votes have put an end to the story for now, but further detail is sure to emerge if the proceedings arising from the Saturn bond go to trial.

Endnote: The Society communicated details of the upcoming EGM by post. Solicitors receive a large volume of correspondence from the Society during the course of a year, most of it consisting of magazines, promotional brochures and the like. Much of it is binned or shelved, unread. Recently, however, the Society has made greater use of email to communicate urgent or important messages; indeed, the outcome of the EGM was communicated the next day by email. It appears quite odd that the letter notifying solicitors of the upcoming EGM was not also emailed, though it should be noted that the EGM was comparatively heavily attended.

Your Country, Your Call

Your Country, Your Call seems a positive idea, although many are at a loss as to what, exactly, it involves. We might not know the answer until the competition concludes but, in the meantime, some controversy has erupted online about its terms and conditions (tucked away in a PDF on the YCYC website).

Simon McGarr covers the background to the competition and the problems with its terms in this excellent post. In summary: entrants are required to cede extensive intellectual property rights to the competition organisers and the winners can be forced to hand over ownership of their ideas, albeit in return for a ‘prize’.

Antoin O Lachtnain suggests that this IP-grab is “down to failure to think the issues out rather than any real malice.” He is probably right: website operators very often do not give adequate attention to their terms and conditions and see them as boilerplate, rather than something that should be comprehensively thought-out and bespoke. Recent Ryanair judgmentsdemonstrate the crucial role website terms can play in some disputes.

It has been suggested in the comments on Simon’s post that some other principles apply to YCYC than those set out in the terms, but it is the terms that actually govern the relationship between applicants and YCYC.

The terms and conditions of the Ideas Campaign (which, as has been noted, bears a strong resemblance to YCYC) feature a similarly strong (though confusingly drafted) licence in favour of the operators. However, it does not include the ability to obtain ownership.

Endnote: It also appears an open question whether the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000 might apply to YCYC and what impact they might have on the IP clauses if a dispute were to arise.