Copyright Reform, The Irish Way

The current copyright statute in Ireland is the Copyright & Related Rights Act 2000. It was changed (a little) to bring Irish law into line with the EU Copyright Directive (2001), but not much has happened since. But following a promise in the coalition agreement after the 2011 general election, a Copyright Review Committee (chaired by Prof. Eoin O’Dell of Trinity College Dublin, who is writing about it on his blog, cearta.ie) was set up. That Committee has now published its discussion paper, ‘Copyright and Innovation’ (PDF here, online questionnaire here). In this blog post, I’ll explain a little about the review process and the contents of the paper.

Of course, Ireland is not the only place where ‘copyright reform’ is being discussed. The neighbouring UK, for one, has had a pair of major reports (Gowers in 2006 and Hargreaves last year), with further work now taking place on translating some of the recommendations into legislation. Readers of this blog will be more than familiar with the Canadian debate of the last decade. However, the terms of reference of the Irish review are worth thinking about, as they do mark the Irish process out as distinctive. It’s probably no surprise that there is a specific reference to identifying and responding to ‘barriers to innovation’, given the attempts by the Irish government to promote ICT (for indigenous industry and inward investment) and Ireland’s current economic troubles. And as with the Hargreaves process in the UK, the Committee (made up of two law professors and a solicitor) was asked to look at the question of fair use.

The discussion paper does all of this, and more. It drew upon the responses to an initial call for submissions (which are published here) and a lively public meeting. 86 (!) questions are asked in the discussion paper (for a second round of comments, which closes this month), with the last being ‘have we forgotten anything?’. Although firm conclusions have not yet been formed (for example, on a fair use test vs new statutory exemptions), draft statutory language has been included in various cases. The Committee is also floating some proposals of its own, such as that for a Copyright Council of Ireland. Such a Council would be independent but recognised by statute (along the lines of the new Press Council), and might deal with licensing, alternative dispute resolution, public awareness, and best practices, as well as being a forum for discussion (e.g. between rightsholders, users, libraries and others). The report also reminds us of one of the most powerful (and underappreciated) provisions of Irish copyright law, that acts permitted under the Act are permitted ‘whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act’ (section 2(10) of the 2000 Act). The Committee asks whether this could be strengthened further by declaring all such terms or conditions void.

Readers might be particularly interested in the reviews of how other jurisdictions have tackled problems, and the Committee has carried out particularly extensive searches of foreign law. As such, draft clauses on issues like parody, non-commercial user-generated content, and data mining are informed by Canadian and Australian proposals, in particular. In other cases, the report returns to core sources (e.g. the Berne Convention) and presents new, provocative clauses. One such example is draft clause 106E, on ‘innovative works’. Chapter 10 of the report sets out the merits and demerits of legislating for fair use, complete with a lengthy review of the legal and economic research on the subject. Israel, Singapore, and the Philippines are discussed. It’s likely that the resulting draft clause 48A will draw plenty of comments. What do IP Osgoode readers think of it?

Technology is also a recurring theme. There are proposals (again, for comment rather than a confirmed view) on the status of Internet links to other Internet sources,’marshalling’ of news, back-up copies (i.e. of material other than computer programs, which is already OK), distance learning, and format shifting by heritage institutions (such as libraries or archives). Technology is also a source of some controversy, and not long before the publication of the discussion paper, things became a little more complicated. The Irish government proposed (and ultimately adopted) secondary legislation, in response to a 2010 High Court decision (EMI v UPC) that Irish law did not provide for injunctions against intermediaries, in a case brought by rightsholders against an ISP. The consideration of this legislation (dubbed SOPA Ireland and a threat to Ireland’s reputation as a tech-friendly place by its critics, defended as necessary for compliance with EU law by its supporters) brought one particular copyright issue right into the centre of public debate. There has been some confusion about the two processes, but we can at least hope that the degree of interest in copyright law will increase the range and quality of submissions to the Committee.

Daithí Mac Síthigh is a lecturer in law and director of the LLM Information Technology & Intellectual Property law at the University of East Anglia in the UK. He blogs at Lex Ferenda.

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