Speech just wants to be free – II

picture-1.pngRTÉ were quick off the mark. Further to my letter to the Director General yesterday, mentioned in my previous post, RTÉ rang the Law School in Trinity where I work, to explain to me that all the Prime Time programmes are available on the RTÉ website and that this should answer my enquiry.

I should say at once that I think that it is a splendid website, especially since its recent revamp. Moreover, I am impressed with the amout of material that they make available online. However, I don’t think that this is a full answer. My concern is not so much with availability as with lawful sharing and reuse. In my letter to Mr Goan, I asked that all video footage from next Thursday’s Prime Time debate could be shared and re-used online without any uploader, user, downloader or commentator being deemed to have infringed copyright or otherwise to have acted unlawfully simply for having done so. In other words, it’s not enough for RTÉ to make the material available online (though that is a good start) if they do not also allow others to use it without fear of breaching the law. It is to this latter concern that my letter to Mr Goan was directed. And, by way of follow-up to RTÉ’s phone call, I explained all of this in an email to Peter Feeney (who is Head of Public Affairs Policy in RTÉ).

One of the links that appears on every page of the RTÉ website is ‘Terms & Conditions‘. Two of them provide:

Lawful Use
2. You may not broadcast, copy, download, frame, reproduce, republish, post, transmit or otherwise use RTÉ.ie content appearing on the RTÉ.ie site in any way except for your own personal, non-commercial use. Any other use of such content requires the prior written permission of RTÉ.

Intellectual Property
8. You acknowledge that the content including but not limited to text, images and logos identifying RTÉ or third parties and their products and services are subject to copyright, design rights and trade marks of RTÉ and/or third parties. You are not permitted to use any trademark, patent, design right or copyright of RTÉ, or any other third party without the prior written consent of RTÉ or the third party.

After next Thursday’s debate, there will be a lot of online commentary, from straightforward comments like ‘he said this’, ‘he didn’t say that’, ‘wasn’t it great?’, ‘isn’t he terrible?’, through those which will try to illustrate this with clips from the debate, to those which will try to transform the clips for reasons of parody and the like. This kind of widespread political debate is of the essence of democtratic participation; and, online, it will be constructued in this case upon the ease of sharing and re-using of clips from the debate. However, this could run smack into RTÉ’s assertion of copyright in the broadcast, an assertion of copyright reiterated in the extracts above from their ‘Terms & Conditions’. My point is that, even though RTÉ are making the broadcast available online, they are still seeking to control and resctrict its re-use. As a consequence, many of the bloggers and other online commentators who seek to share and re-use content relating to the debate run the risk of infringing RTÉ’s copyright, thereby committing both civil wrongs and criminal offences under the Copyright and Related Rights Act, 2000 (available here and here).

There are three possible ways to alleviate these fears. The first is that such sharing and re-use might come within the statutory exception of ‘fair dealing’ (see Part II, Chapter 6 of the Act – here and here). However, as I have not tired of pointing out on this blog, this exception is very narrow indeed, and is very much narrower than the equivalent-sounding US ‘fair use‘ doctrine. If, as Larry Lessig believes, the US doctrine is insufficient to protect US online bloggers and commentators as they share and re-use coverage of the presidential candidates’ debates, it follows that the weaker Irish doctrine is even less likely to protect their Irish counterparts.

The second is that such sharing and re-use might be allowed by the terms of RTÉ’s own ‘Terms & Conditions’ (and in particular section 2, headed ‘Lawful Use’.) But it is not clear to me that this will be so.

The third way to alleviate fears that sharing and re-using content from the Prime Time debate could constitute a breach of RTÉ’s copyright is for them simply to say so, for RTÉ to remove all doubt and simply say that sharing and re-using video footage from next Thursday’s debate will not be regarded by them as an infringement of their copyright, so that any uploader, user, downloader or commentator who does so will not for that reason have acted unlawfully simply for having done so. And they could do this either by indicating that this coverage will be in the public domain, or by making it available pursuant to an appropriately adapted Creative Commons licence. It would be a very important symbolic gesture on RTÉ’s part of their commitment to the system of freedom of expression in Irish democracy.

As I was preparing this post, Peter Feeney rang me back to discuss the issue; I have to say that he seemed very open to the idea in principle, subject to copyright concerns which he would have to refer their lawyers on Monday. I’ve discussed these concerns above, and suggested two ways around them (pubic domain; creative commons). I hope to have the opportunity to discuss this further with RTÉ (whether with Peter or their lawyers) over the coming days before the debate, and I hope to hear back soon from the candidates who will be taking part in the debate to whom I have also written. I shall record all developments here.

In the meantime, please, blog about this, spread the good word, and sign the petition. Remember, speech just wants to be free!

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