#CRC12 Paper: Chapter 2 – The Intersection of Innovation and Copyright in the Submissions

#CRC12logosmallThe main focus of the Terms of Reference of the Copyright Review Committee is upon the barriers to innovation, if any, created by Irish copyright law; and this was reflected in the submissions which the Committee received (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). After an introductory chapter 1, chapter 2 of the Copyright Review Committee’s Consultation Paper (published yesterday) sets out what the Committee understood by innovation (section 2.2), it briefly outlined some salient features of Irish copyright law (section 2.3), and the points in the previous two sections were applied to a classification of the submissions received (section 2.4).

In the Paper, the Committee construe “innovation” and its connections with copyright fairly broadly. Whilst the Committee has regard to innovation, creativity, ingenuity, renewal and transformation in all of their forms – artistic, cultural, educational and social, as well as economic – nevertheless, much public policy is now being driven by “innovation” in the sense of the development of new businesses, products and technologies. For example, the Organisation of Economic Co-Operation and Development (OECD) understands the process of innovation (pdf)

as the implementation of a new or significantly improved product (good or service), or process, a new marketing method, or a new organisational method in business practices, work-place organisation or external relations … [which must therefore] by definition, contain a degree of novelty.

There are great competitive advantages to be gained if the basic conditions of the Irish innovation ecosystem are well-adapted and conducive to sustaining a thriving knowledge economy. Copyright law is one of the pressures that will shape some of the outcomes of the process of technological innovation. The aim of the Review is to determine whether current Irish copyright law strikes that balance appropriately.

As a matter of principle, therefore it is crucial that there be clarity in the basic legislative provisions, not least so that the remainder of the Paper can measure them against innovation. Similarly, it is important that copyright law be as technology-neutral as possible, to allow for future developments without the necessity for ongoing piecemeal amendments.

Broadly speaking, copyright subsists in original works, music, films, published editions, original databases, and software. The rights-holder has the exclusive right to make the work available to the public, to copy the work, or to adapt it, and may grant a licence to others to do these things. Copyright generally subsists until the first of January of the year after the 70th anniversary of the death of the author of an original work, and this 70 year period is a baseline for the duration of other copyrights, though many have shorter durations. These rights are balanced by many exceptions, such as fair dealing (for various purposes, including research or private study, news and criticism or review), incidental inclusion (such as for the purposes of quotation), and for educational purposes.

The Committee is working towards proposing draft heads of a possible Copyright and Related Rights (Innovation) (Amendment) Bill, 2012, to implement the recommendations in the Final Report. Hence, some possible provisions are discussed in the Paper, and responses with draft legislative text are particularly encouraged, as this serves to make clear both what an issue is and what its legislative solution might be. Moreover, there is a great deal of primary and secondary legislation in the copyright area, listed in Appendix 2 to the Paper (and further augmented by yesterday’s Statutory Instrument). This is a rather fragmented situation, and any Bill enacted following the Review would only add to that. As a consequence, one of the questions posed in the Paper is whether all of the amendments to the Copyright and Related Rights Act, 2000 (also here) which are still in force should be consolidated into that proposed Bill. This would minimise the number of sources through which Irish copyright law is scattered, and thereby make it more accessible.

The Committee received a wide range of submissions, from those who said that copyright should be abolished, through those who said that no change at all was needed, to those who said it should be strengthened. A full list is available in Appendix 1 to the Paper and the submissions themselves are available online. The Paper is submission-led, in that much of the discussion reflects and engages with the submissions, which came broadly from six main categories:

  1. rights-holders; this category includes the people who create the copyright work, and as well as their publishers, music labels, movie studios, broadcasters and so on;
  2. collecting societies; this category includes societies which grant licences of copyrighted works and collect copyright royalties for distribution back to the rights-holders;
  3. intermediaries; this category includes internet service providers, online search engines, social networks, and trading sites;
  4. users; this category includes the consumers, purchasers and users of copyright works;
  5. entrepreneurs; this category includes online start-ups; and
  6. heritage institutions; this category includes libraries, archives, galleries, museums, schools, universities and other educational establishments, and the like.

These categories are simply impressions of the submissions rather than formal or legal definitions, and they constituted a useful classification with which to organise the submissions and the Paper. Moreover, even for that purposes, they are neither hermetically sealed nor mutually exclusive, and there is a fluid over-lap between them. Nevertheless, all of these categories have their own perspectives on the intersection of innovation and copyright. In this respect, the concern of the Committee in the Paper is two-fold. First, it is with the intersection of copyright and innovation in every category, not just in one. Second, it is with the appropriate balance of copyright protection both within and between the various categories, the better to encourage innovation.

The chapter ends with a series of questions which seem to the Committee to arise from the intersection of innovation and copyright in the submissions, and it is hoped that the next round of submissions will engage some of these questions (there are 86 questions in total, set out in Appendix 3, and the Committee would be delighted to receive any responses to any of them. In particular, it is not necessary for any submission to seek to answer all of them). Any submissions should be received by close of business on Friday 13 April 2012 Thursday 31 May 2012“>Friday 13 April 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.

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.

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