cearta.ie

There was some chatter online yesterday about the fact that the UK Supreme Court sat for the first time with a 3-2 female-male majority. The Supreme Court of New Zealand had done so last year. Despite the complement of female justices over the last 20 years, the Supreme Court of Canada doesn’t seem to have had a female majority panel yet. And there haven’t been sufficient female justices on the High Court of Australia for it to have happened there. Against that backdrop, I thought I’d find out if and when the Irish Supreme Court had first sat with female majority panels, and this is what I found.

The first majority female panel in the Irish Supreme Court happened more than EIGHTEEN years ago. Denham J was the first woman appointed to the Supreme Court, in 1992; McGuinness J was the second, in January 2000; and a female 2-1 majority on a 3-judge panel of the Supreme Court happened almost immediately after that appointment, in February 2000. In Dalton v Governor of the Training Unit [2000] IESC 49 (29 February 2000) Denham and McGuinness JJ sat with Hardiman J (the image, above left, is of McGuinness J (left) and Denham J (right)).

Macken J (pictured right) was the third woman appointed to the Supreme Court, in May 2005; and a female 3-2 majority on a 5-judge panel of the Supreme happened soon after that appointment, in November 2005. In DPP v Gilligan [2005] IESC 78 (23 November 2005) Denham, McGuinness and Macken JJ sat with Geoghegan and Fennelly JJ.

There does not seem to have been a 3-judge panel on which all three of Denham, McGuinness and Macken JJ sat before McGuinness J retired at the end of 2005.

Denham J became Chief Justice in 2011 (and retired in 2017). The next women appointed were Laffoy J (2013–2017) and Dunne J (2013-present), appointed on the same day (pictured left are Laffoy J (left) and Dunne J (right) on the occasion of their appointment to the Supreme Court by President Higgins (centre)). The first all-female 3-judge panel is Cagney v Bank of Ireland [2015] IESC 80 (22 October 2015) on which Denham CJ, Laffoy and Dunne JJ sat.

The next women appointed were O’Malley J (2015-present; pictured right), and Finlay Geoghegan J (2017-present). The first female 4-3 majority on a 7-judge panel was Murray v Budds [2017] IESC 4 (02 February 2017) where Denham CJ, Laffoy, Dunne and O’Malley JJ sat with O’Donnell, McKechnie and MacMenamin JJ.

Incidentally, given that some of the recent coverage of the UK Supreme Court centred on the fact that Lady Arden succeeded her husband Lord Mance on the Supreme Court bench, it should be noted that Ireland got here first too, with Finlay Geoghegan J (pictured left) being appointed to the Supreme Court some time after her husband, Hugh Geoghegan, retired from that court.


Finally, Ruth Bader Ginsburg, Associate Justice of the US Supreme Court, has said many times:

People ask me sometimes, ‘When do you think it will be enough? When will there be enough women on the court?’ And my answer is: when there are nine.

By that standard, the Irish Supreme Court has a way to go for an all-female bench of 5 or 7, or for every judge to be female. But it is far ahead of many of its counterparts elsewhere in the common law world. And it has done so quietly, without any of the fanfare that accompanied yesterday’s hearing in the UK Supreme Court.

I have written several times on this blog about the importance of digital deposit (here, here, here, here). Section 198 of the Copyright and Related Rights (also here) provides for the delivery of print publications by publishers to libraries specified in the Act. Under this copyright deposit or legal deposit obligation, several libraries are entitled to copies of books published in the State. However, in Ireland this obligation applies only to print publications. In many jurisdictions, this obligation has been extended to cover electronic publications and websites. With the rise of digital publishing, it is increasingly being recognised that print deposit is incomplete, and that a comprehensive preservation of a nation’s published heritage requires that copyright deposit should extend to online publications as well. Moreover, online material is disappearing at frightening pace. Hence, the Copyright Review Committee, in the Modernising Copyright Report, recommended adding a new section in the 2000 Act to extend the existing copyright deposit regime for print publication in section 198 to digital works, and to permit copyright deposit institutions to harvest the .ie domain.

After much to-ing and fro-ing charted in the earlier blogposts, section 27 of the Copyright and Other Intellectual Property Law Provisions Bill 2018 (as initiated; pdf), in a much less comprehensive provision than that recommended by the CRC, provided for a limited form of digital deposit. It extended the copyright deposit regime to ebooks, but did not provide for the harvesting of the .ie domain. Section 27 remained unamended in the version of the Bill (pdf) that passed the Dáil. But an amendment put forward by Fianna Fáil, and accepted by the government, added a new section 106

Within twelve months of the enactment of this Bill the Government shall bring forward a report on the feasibility of establishing a digital legal deposit scheme to serve as a web archive for .ie domain contents and advise on steps taken towards that goal.

This was progress, even if it amounted to making haste slowly. The Bill went to the Seanad, where Committee stage was taken today. Senator Fintan Warfield argued that a feasibility study was too little, too late, and that the Bill should be amended to provide for the harvesting of the .ie domain. He proposed a short amendment designed to do just that. It is amendment 2 here (pdf). The Minister who had carriage of the Bill during the debate (the Minister of State for Training, Skills, Innovation, Research and Development, John Halligan TD) declined to accept it on the grounds that there were issues with other government departments and public institutions, and that it would have significant resource implications. Nevertheless, Senator Warfield pressed it to a vote. On the electronic vote, there was a tie – Tá (yes) 18; Níl (no) 18 – and the amendment was defeated on the casting vote of the Leas Cathaoirleach (Deputy Speaker). So Senator Warfield called for a walk-through vote, and the amendment was carreed – Tá (yes) 19; Níl (no) 17.

This is excellent news as a matter of principle. It is an important step in making Irish copyright law fit for the digital age. It will also come as a relief to the National Library of Ireland. The image at the top of this post comes from the following tweet:

Behold! The Irish web! Arrived safe and sound from our friends @internetarchive. It will be winging it's way to our reading room very soon! #staytuned #webarchiving #digipres pic.twitter.com/cdlqaBxjOO

— Nat Library Ireland (@NLIreland) April 4, 2018

In other words, the National Library have already harvested the .ie domain. Good for them, notwithstanding that this is a wholesale infringement of copyright. And if and when the Bill becomes law with Senator Warfield’s amendment, and if they do it again thereafter, it won’t be a copyright infringement then!

As I explained in my previous post, as the law currently stands, format-shifting and backing-up can infringe copyright. But there is no good reason why this must be so. And the Copyright and Other Intellectual Property Law Provisions Bill 2018 currently pending before the Seanad provides a golden opportunity to put things right.

The main legislation relating to copyright at Irish law is the Copyright and Related Rights Act, 2000 (also here). It is the Principal Act for the purposes of the Copyright and Other Intellectual Property Law Provisions Bill 2018. The aim of that Bill, as described in its long title is to amend the Principal Act

… to take account of certain recommendations for amendments to that Act contained in the Report of the Copyright Review Committee entitled “Modernising Copyright” published by that Committee in October 2013 and also to take account of certain exceptions to copyright permitted by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 20011 on the harmonisation of certain aspects of copyright and related rights in the information society; …

Senators David Norris, Victor Boyhan, Fintan Warfield, Ivana Bacik, Kevin Humphreys, Ged Nash, and Aodhán Ó Ríordáin have proposed amendments to the Bill to permit format-shifting and backing-up. And these amendments are entirely consistent with the aims of the Bill: they propose amendments to the Principal Act to implement other recommendations in the “Modernising Copyright” Report and other exceptions permitted by the Directive. Those recommendations and exceptions relate to making copies for private use, such as format-shifting and making back-ups. The main argument in favour of such private copying exceptions is that they reflect consumers’ reasonable assumptions, basic expectations, and widespread practices. The Copyright Review Committee said as much in its “Modernising Copyright” Report. The Committee was established on 9 May 2011 by the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton (TD). After an extensive consultation process, the Committee’s Report, dated 1 October 2013, was published by the Minister on 29 October 2013. The Report contained a comprehensive draft Bill to implement its recommendations, and it was widely welcomed. Many provisions of the current Bill are based upon provisions of the Bill in the Committee’s Report. In particular, the Directive permits national law to introduce what it calls limitations and exceptions to enable user rights. Some of those are included in the Principal Act; and many more are now included in the Bill. Those included in the Bill relate to matters such as education, libraries and archives, parody, text and data mining, and persons with a disability. All of these proposals are very welcome. However, private copying exceptions for format-shifting and backing-up, where are permitted by the Directive and which were proposed by the Committee, are not included in the Bill; and their omission is very unwelcome indeed.

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Have you ever transferred music from one device to another? Have you copied music from a CD to your phone to listen to it on the way to work? Have you copied a DVD to a tablet to watch it on a long journey? If so, you have probably infringed copyright, almost certainly without realizing it.

Have you every backed-up the data on your phone, or your laptop? Of course, most of us don’t back-up as often as we should; but, if you do, then you have probably infringed copyright, again almost certainly without realizing it.

Moving data from one format or device to another is known as format-shifting, and both it and backing-up mean that you are making copies of the relevant content or data. Making those copies is an infringement of copyright, unless you have the permission of the copyright owner (which usually you won’t have), or you can rely on a copyright exception provided by copyright legislation (which right now, in Ireland, you can’t).

There is no good reason why format-shifting or backing-up should be an infringement of copyright. And there are many good reasons why it should not. In particular, the fact that you didn’t realize that format-shifting or backing-up are infringements of copyright demonstrates that consumers assume that format-shifting and backing-up are perfectly normal behaviour. These are ubiquitous practices in the digital age, and copyright law should not frustrate such legitimate consumer assumptions.

These exceptions are permitted by the EU’s 2001 Copyright Directive, and they have long formed part of the law in most European countries. Many common law countries have looked at this issue in the recent past, and have concluded that they too should introduce these exceptions. A Bill currently before the Seanad is a golden opportunity for Irish law to do likewise.

Exceptions to copyright are often described as fair dealing, and the Bill ought to be be amended to provide explicitly that format-shifting and backing-up should be regarded as fair dealing too.

However, considerations of fairness require that copyright owners should be compensated for any harm done to them by this fair dealing. In other countries where such exceptions exist, copyright owners receive such fair compensation from levies upon the manufacturers and importers of the blank recording media to which the data is transferred. In this way, a fair balance between the rights of consumers and copyright owners is achieved. Hence, the Bill ought also to be amended to provide such a scheme.

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This is a call for papers for a conference on Reputation as Property: Perspectives from Tort and Property, to be held on 18-19 January 2019 in Trinity College Dublin:

How can tort law account for the harm of defamation? One answer to this question is to argue that our reputation is or is like property. While this analogy may make sense to tort law theorists, particularly those seeking to give an internal account of tort law, it may not make sense to property theorists. In addition, it is not clear whether this approach fits with the case law. Whether or not thinking about reputation as property makes sense raises the question of whether tort law theory understands property differently than property theory does. It also raises the question of whether the theory of the tort of defamation fits the case law. In what ways does it make sense to think about reputation as property, and in what ways does it not?

In this workshop, organised in association with the Private Law Group at Trinity College Dublin, we seek to bring together property and torts scholars to discuss both theoretical and doctrinal approaches to the question of whether reputation is property or not.

We are interested in examining the contexts in which reputation as property already exists as an accepted doctrine – such as corporate and commercial law, where it takes the form of goodwill – and whether this understanding can be transferred to other areas of law, such as privacy and data protection law, and whether ‘property’ is the right term for the value of reputation. Our goal is to think through new understandings of reputation and how harm to reputation can be accounted for by law and how (or if) these can lend coherence across different areas of law. We welcome papers which engage with these and related issues.

Submission and Selection Email abstracts (max 500 words) to Dr. Sarah Hamill (Trinity College Dublin) and Dr. David Mangan (City, University of London) by October 22, 2018. Acceptances will be communicated by November 9, 2018.

Last month, English golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Thomas Fleetwood had the St£120,000 (US$154,480, €133,000) winnings deposited in his bank account. There doesn’t seem anything exceptional in that story, so let’s try again. Last month, British golfer Tommy Fleetwood came twelfth in The Open golf championship. Earlier this month, Florida golfer Thomas Fleetwood had the St£120,000 winnings deposited in his bank account. That’s right – golf’s authorities lodged the winnings to the bank account of the wrong golfer. One of Thomas’s golf friends posted a picture of the lodgement record on twitter. And Thomas duly repaid the wayward deposit. But he would not have been able to keep it anyway, had he been minded to. As I have said before on this site, you can’t keep the proceeds of a bank error in your favour; and, if you do, you probably won’t be able to get out of jail free (see also here, here, here, here, and here). So, Thomas would have had to give back the winnings to golf’s authorities; and they in turn will no doubt pay them on to Tommy, if they have not already done so.

We are so used to wayward golf shots that there is a convention that the golfer hitting the wayward shot shouts “fore!” to alert those in its path. Wayward winnings are less common. So, purely as a hypothetical for the purposes of this post, let us assume that Thomas hadn’t repaid them. It is clear that the golf authorities could sue him to recover their mistaken payment (more…)

On 20 August 2018, the Central Applications Office (the CAO) issued the first round of offers of places in Ireland’s higher education institutions. It seems that CAO applications to Trinity fell by 8%, which was almost double the national 4.5% decrease, in part because Brexit has had an impact on course choices and applications. However, demand for law courses is generally up by an average of 3% overall. In the table below, I set out the points for law courses in the first round in the second-last column.

Update: On 30 August 2018, the Central Applications Office (the CAO) issued the second round of offers of places in Ireland’s higher education institutions. This round saw significant falls in points for some courses in Dublin and Cork, which may be due to the housing crisis in the high levels of rents and low levels of rental property supplies in those cities. In the table below, I set out the points for law courses in the second round in the last column.

* Not all candidates on this point score were offered places.

In the early days of this blog, I wrote three posts on whether there is a criminal or civil legal liability for using other people’s wifi without permission.

I was reminded of these posts yesterday, when Edmund Heaphy (a student in Trinity, and a journalist at Quartz) contacted me about the following story:

The unique legal concept that led to Germany’s weird wifi laws

Germany is about to get a lot more free wifi. One of the country’s highest courts has upheld a 2017 law designed to put an end to the effect of a peculiar legal concept known as Störerhaftung as it applies to public wifi networks. …

Whilst the decision of the Bundesgerichtshof (Federal Court of Justice) is very welcome, German lawyers have told the World Intellectual Property Review that more clarity is needed. As Mateusz Rachubka points out o the 1709 Blog, the 2017 legislation is a result of the decision of the CJEU in Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH, which held that the eCommerce Directive (Directive 2000/31/EC; OJ 2000 L 178, p. 1) precluded a rights-owner seeking damages from an access provider whose open network was used by a third party to upload or download material that infringed copyright, but did not preclude the rights-owner seeking an injunction requiring the access provider to terminate or prevent a copyright infringement.