Copyright and Innovation – The CRC Consultation Paper

CRC Wordle

As regular readers of this blog will know, last Summer, to maximise the potential of digital industry in Ireland, the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD, set up the Copyright Review Committee to identify any areas of Irish copyright legislation that might create barriers to innovation and to make recommendations to resolve any problems identified. Our Consultation Paper has just been published on the the Department’s website (and it’s also available for download here (pdf)). Welcoming the Paper, the Minister of State with responsibility for Research and Innovation at the Department of Enterprise, Jobs and Innovation, Seán Sherlock TD, said

I am committed to reviewing and updating the Copyright legislation currently in place in order to strike the correct balance between encouraging innovation and protecting creativity. This paper has been prepared by the Copyright Review Committee in response to submissions received and public engagement. I urge all interested parties, including information providers and ISPs, innovators, rights holders, consumers and end-users, to study it carefully and engage in a constructive debate on all the issues.

As to what is in the Paper, the wordle above gives a good sense of the frequency with which various words are used in it. The largest words above, and thus the most frequently used in the Paper, are: copyright, section, work, innovation, submissions, use. As the frequency of “submission” demonstrates, the Paper is submission-led; it explores possible outcomes; and it poses 86 specific questions on which further responses are sought. There were many assertions in the submissions that, in seeking to achieve an appropriate balance, copyright law either over- or under- protects various interests. However, little hard evidence was provided to support these assertions. Therefore, a great many of those questions seek such evidence. Moreover, since it is a consultation paper, there are no firm conclusions or recommendations; rather, it explores various options to meet the concerns expressed in the submissions. Hence, such further submissions are actively encouraged, and conclusions will be reached in a Final Report based on the responses to the Paper.

As the frequency of “innovation” in the wordle demonstrates, the analysis in the Paper always referred back to the question whether any given copyright issue raised an actual or potential barrier to economic and technological entrepreneurship and innovation. In the Paper itself, Chapter 1 sketches the background to the process. Chapter 2 defines innovation, sketches copyright principles, and provides a classification of the submissions received (into (i) rights-holders; (ii) collecting societies; (iii) intermediaries; (iv) users; (v) entrepreneurs; and (vi) heritage institutions). Later chapters apply this classification.

One of the main ideas raised in the Paper is in Chapter 3, which explores the possible establishment of a Copyright Council of Ireland by the Irish copyright community, which could in turn establish a digital copyright exchange and an alternative dispute resolution service. The chapter also explores how this would dovetail with the jurisdiction of the Controller of Patents, Trade Marks and Designs (the Controller) and with specialist copyright (or intellectual property) tracks in the District and Circuit courts. In conjunction with many of the specific issues discussed in the subsequent chapters, a Council has the potential to ensure a great deal of progress in copyright issues generally.

Rights-holders are central both to copyright and to innovation, and their position is considered in chapter 4; whilst chapter 5 considers the position of collecting societies which have been formed to give practical effect to the rights of rights-holders. However, copyright law has to strike a delicate and proportionate balance between the monopoly afforded to rights-holders and the potential to undercut diversity and innovation by preventing further developments. It does so by accommodating other interests and perspectives, such as those of the other categories considered in chapters 6 to 9 – intermediaries, users, entrepreneurs, and heritage institutions. Those chapters explore how those interests might be accommodated by crafting appropriate copyright exceptions. Many of these exceptions reflect EU law, but – having regard to the Terms of Reference – the Paper goes further and considers whether it might be possible to develop a specific exception for innovation. The most controversial issue in the submissions concerned the doctrine of fair use, and that is considered in detail in chapter 10. Finally, chapter 11 brings the Paper to a conclusion.

It is hoped that the Final Report will contain draft heads of a Copyright and Related Rights (Innovation) (Amendment) Bill, 2012, to implement the Committee’s recommendations. Hence, at many points in the Paper, some early drafts of possible sections of that Bill are provided for the purposes of discussion in the next round of submissions. These should be received by close of business on Friday 13 April 2012 Thursday 31 May 2012. There will also be a public meeting from 10:00am until 12:00 noon, on Saturday 24 March 2012, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary. To make a submission, or to register for the public meeting, please email the Review.

Page from Psalter of St Columba via wikipediaThe final chapter of the Paper makes the obligatory reference to timeworn story of the sixth-century judgment of Diarmaid, High King of Ireland, who held against St Columba in a copyright dispute with St Finian of Clonard. Columba (or Colum Cille or similar variants) had illicitly copied a psalter in Finian’s scriptorium; and Diarmaid ordered Columba to deliver the copy to Finian:

To every cow its calf and to every book its copy.

A psalter (Cathach) traditionally identified as the one at the centre of the dispute is now in the Royal Irish Academy. This legend suggests that Ireland was the first country in the world to protect copyright. If the Review establishes Irish copyright law on a firm footing to encourage innovation, foster creativity, and meet the challenges of the future with confidence, it will be an appropriate legacy for Diarmaid’s judgment in the dispute between Columba and Finian.

Update: you may also make a submission via the Committee’s online questionnaire, or via any of the other online submission mechanisms being made available by many interested parties.