29 October 2013


Ireland's Copyright Review Committee (CRC) has released its report [PDF] about updating that nation's copyright regime.

The CRC was established in 2011, with the following terms of reference
1. Examine the present national copyright legislation and identify any areas that are perceived to create barriers to innovation.
2. Identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation.
3. Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.
4. If it transpires that national copyright legislation requires to be amended but cannot be amended (bearing in mind that Irish copyright legislation is bound by the European Communities Directives on copyright and related rights and other international obligations), make recommendations for changes to the EU Directives that will eliminate the barriers to innovation and optimise the balance between protecting creativity and promoting and facilitating innovation.
Its recommendations are summarised as -
The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links. The position of rightsowners will be improved, by recommendations to extend remedies, technological protection measures, and rights management information. Furthermore, photographers in particular will benefit from the recommendation that copyright protection for metadata be strengthened.
The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including formatshifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining. Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.
Copyright Council of Ireland
A central recommendation is the formation of a Copyright Council of Ireland, as an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures provided (section 3 of Bill; and the Schedule). This should be based on principal objects that ensure the protection of copyright and the general public interest as well as encouraging innovation; and it should have a broad subscribing membership and a Board drawn widely from the Irish copyright community. It should provide education and advice on copyright issues, advocate both nationally and internationally for developments in copyright policies or procedures, and work towards solutions on difficult copyright issues. It should be able to establish a Digital Copyright Exchange (to expand and simplify the collective administration of copyrights and licences), a voluntary alternative dispute resolution service (to meet the need for an expeditious dispute resolution service outside the court system), and an Irish Orphan Works Licensing Agency (to provide a solution to the problem of orphan works).
The Courts and the Controller
In parallel, we recommend that the Small Claims procedure in the District Court be extended to include intellectual property claims up to the value of the standard limit of the District Court’s jurisdiction, and that a specialist intellectual property court also be established in the Circuit Court (section 4 of the Bill). We also recommend that the Controller of Patents, Designs and Trade Marks be renamed the Controller of Intellectual Property (section 5 of the Bill). Moreover, we strongly recommend that these new Courts and the Controller’s Office be properly resourced. If they are not, all of this new architecture will be for naught. In these new structures, it will still be for the Minister to make policy, for the Controller to implement that policy and to regulate and administer the State’s formal intellectual property infrastructure, for the Council to provide education and advice and to run its various services, and for the Courts to provide ultimate resolution of disputes.
Innovation and Fair Use
We recommend the introduction of tightly-drafted and balanced exceptions for innovation and fair use. Given the significant nature of these changes, we specifically recommend that the Minister’s power to determine the date on which they come into operation should be expressly reiterated in these sections, so that they may come into effect on a graduated basis at appropriate times. As to the innovation exception, we recommend that it should not be an infringement of copyright to derive an original work which either substantially differs from, or substantially transforms, the initial work (section 21 of the Bill).
As to the recommended fair use exception, it is very circumspect, and differs substantially from the US doctrine. We recommend that the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors (section 29 of the Bill).
Interconnectedness by linking is at the very heart of the internet, so we recommend that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. We further recommend that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words (section 14 of the Bill).
A key means by which copyright drives innovation is by incentivising rightsowners and content-creators to produce copyright works. We therefore recommend a full range of graduated and proportionate civil remedies, for infringement of copyright, of performers’ rights, and of recording rights. Hence, at one end of the scale, unintentional breaches are not met with significant awards of damages, and that, at the other end of the scale, the most serious breaches can be appropriately dealt with by the award of restitutionary, exemplary or punitive damages (section 8 of the Bill).
The position of photographers was a particular concern at both public meetings and in both rounds of submissions. We therefore recommend explicit protection for digital watermarks and other metadata applied to photographs. To this end, we provide a definition of metadata (section 2(2) of the Bill); and we recommend not only that copyright protection be extended to metadata, but also that its removal should amount to an infringement of copyright (section 9 of the Bill).
Technological Protection Measures
We also recommend various ways by which the legal rules underpinning technological measures for the protection of copyright or for the management of copyright information can be strengthened. In particular, we recommend that rightsowners can seek remedies for infringements of rights protection measures even where the work has been licensed, and that a circumvention of a technological protection measure should be actionable at the behest of the rightsowner as though it were an infringement of copyright (section 10 of the Bill). On the other hand, we also recommend that users should have an effective remedy where the technological protection measures prevent a user from performing an exception permitted by the legislation (section 10 of the Bill).
We recommend that the statutory provisions relating to transient and incidental copies be amended to come more closely into line with the approach being taken by the Court of Justice of the European Union (CJEU) (section 13 of the Bill). However, in advance of the outcome of a current EU Commission process,17 we do not recommend amending the existing conduit, caching and hosting immunities or introducing new immunities relating to search, framing, and cloud computing.
Users and Consumers
Innovation is increasingly an iterative and interactive process in which users play increasingly important roles, especially online, where technology is making it increasingly easier for users to innovate. To facilitate this, we recommend amending the definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world (section 16 of the Bill). We also recommend the introduction of the full range of exceptions permitted by EU law. Five of these relate to private use: reproductions on paper for private use; format-shifting; back-ups; parody; and non-commercial usergenerated content (all in section 16 of the Bill). Other recommended exceptions relate to news (section 15 of the Bill), religious or official celebrations (section 16(3)(b) of the Bill), and public administration (section 20 of the Bill). Finally, all users and consumers will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void (section 19 of the Bill).
Education and Research
To incorporate the range of exceptions in respect of education permitted by EU law, we recommend that the existing education exceptions relating to “research or private study” should be amended to cover “education, research or private study”, that those relating to “instruction and examination” should be amended to cover “education and examination”, and that such exceptions should extend to distance learning and the use of material available online (section 17 of the Bill). We also recommend that these developments should be subject to a licence override, and that they should be balanced by a definition of “education” which explicitly confines these exceptions to formal education in the non-commercial sector (section 2(2) of the Bill).
Similarly, given the potential for new discoveries from existing data, very significant social benefits stand to be gained from text-mining and data-mining (hereafter called “content-mining”), and we therefore recommend exceptions relating to content-mining (section 27 of the Bill) and to digital research and computer security (section 28 of the Bill).
To incorporate the full width of the exception in respect of disability permitted by EU law, we recommend that the existing exception for accessible personal copies for persons with a disability should (subject to a licence over-ride) be extended to permit multiple accessible copies for persons with a disability to be made by designated bodies. We also recommend that the Minister may provide that publishers should be given an anticipatory duty to retain intermediate electronic versions of works for the purpose of creating accessible copies (section 18).
We recommend that references in the current legislation to “libraries and archives” be replaced with a more generic reference to “heritage institutions” (as defined in section 22(2) of the Bill), that such institutions should be able to format-shift works in their collections for archival or preservation purposes, to display such works on terminals in the institutions, and to use them in public lectures and in catalogues relating to exhibitions (sections 22 and 23 of the Bill). We also recommend that there should be a rebuttable presumption that where a physical work is donated or bequeathed, the copyright in that work passes with the physical work itself (section 24).
In keeping with the digital focus of much of the Bill, we recommend that the existing provisions relating to legal copyright deposit should be extended to digital publications, so that copyright deposit institutions should be able to decide which digital publications they wish to claim and how they wish to claim them, in a process that is as similar as possible as the existing provisions. We also recommend that such institutions should be able to make copies of our online digital heritage by reproducing any work that is made available in the State through the internet (section 26 of the Bill provides for digital deposit; section 25 of the Bill provides for parallel changes to the existing provisions).
Other Recommendations
We recommend that there should be a new, technology-neutral, definition of “broadcast” for copyright purposes, and (for the avoidance of doubt) that the existing cable programme exceptions should not capture internet transmissions (section 11 of the Bill). We recommend that the sound track accompanying a film should be treated as part of the film (section 6 of the Bill). We recommend that there should be a provision which clarifies that copyright exceptions do not apply to computer programs, as they are subject to their own regime (section 12 of the Bill). We also recommend that an anomaly in the current legislation, by which certain unpublished works might gain a perpetual copyright, should be removed (section 7 of the Bill).
Penultimately, to ensure that there is a single authoritative statement of all Irish copyright legislation, we recommend that the Copyright Council should be able to propose such restatements to the Attorney General (section 12 of the Schedule). Finally, we recommend18 that there should be a review of the operation of the changes made by the Bill five years or so after it comes into force (section 20 of the Bill).