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#CRC12 Paper: Chapter 4 – Rights-holders

#CRC12logosmallChapter 4 of the Copyright Review Committee‘s Consultation Paper considers the position of rights-holders in copyright law in general, and how such rights-holders contribute to the process of innovation in particular (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). The intersection between copyright and innovation is clear in the case of rights-holders, who benefit from the rights conferred by copyright law in two main ways: they can commercially exploit their works, and they protect the artistic integrity of their works. The central premise from which copyright law has developed is that it is the potential reward provided by copyright that encourages the art, movie, music, programming and writing. In that sense, copyright law fosters and protects innovation. Moreover, copyright provides rights-holders legal protection for the artistic integrity of their works. Nevertheless, both of these justifications look not only to the rights-holder, but also to the public benefit of the work: the State affords copyright protection to rights-holders because a diverse range of work is for the public benefit or the common good; and the appropriate reward afforded to the rights-holder is not an end in itself, but rather the means to this diversity, competition and innovation.

This is the background against which the Paper examines some of the specific submissions which touched upon the position of rights-holders. For example, it was suggested that copyrights ought to be formally registered, but this is precluded by Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works. Again, it was suggested that the understanding of “originality” in section 17 of the Copyright and Related Rights Act, 2000 (also here) ought to be amended to protect only works which are the author’s own intellectual creation. However, it was not clear to the Committee how narrowing the ambit of copyright in this way would incentivise innovation. Moreover, the Paper also considers various issues relating to the definition of “author” in section 21 the Act.

Several submissions pointed out that an unintended consequence of certain aspects of the Act has the potential to provide for a perpetual copyright in certain unpublished works. The Paper therefore invites submissions on the question whether copyright in a work should expire 70 years after the death of the author, irrespective either of the date on which the work is first lawfully made available to the public or of whether the work is ever made available to the public.

It is not enough that copyright-owners hold rights; they must also be able to protect them where appropriate; as a consequence, the Paper discusses submissions relating to technological measures for the protection of copyright or for the management of copyright information. Similarly, not only must copyright-owners be able to protect their rights, they must also be able to seek remedies when they are infringed. Many issues relating to remedies are discussed in chapter 3. In this chapter, the Paper invites submissions on the question whether there is any evidence that it is necessary to modify remedies (such as by extending criminal sanctions or graduating civil sanctions) to support innovation.

Some rights-holders argued that there ought to be a system of levies upon devices or storage media that facilitate copying, but it seemed to the Committee that such levies are a blunt instrument that would amount to a tax on innovation. Various submissions argued that copyright law ought to be as technology-neutral as possible, so the Paper explores issues relating to the definition of broadcasting and web-streaming. Other submissions raised issues outside the Committee’s Terms of Reference, including rental rights, lending rights, and artists’ resale rights.

The position of photographers was a particular concern both in the submissions and at a public meeting hosted by the Committee. Digital photographs are now particularly easy to reproduce, and many photographers argue that this has led to widespread piracy, especially online, and they trenchantly argued against the introduction of additional exceptions which would dilute photographers’ rights even further. The Paper perceives two issues of principle here. First, infringement of copyright will occur whether there any exceptions at all, let alone whether they are narrow or generous; so the real issues are how such infringements might be prevented in the first place and properly remedied if they occur. If those matters can be sorted out, the second issue relates to the appropriate exceptions to photographers’ copyrights.

As always, the chapter ends with a series of questions which seem to the Committee to arise from the discussion of the Council, 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. 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.

5 Responses to “#CRC12 Paper: Chapter 4 – Rights-holders”

  1. C Murray says:

    Arts Practice is in it’s essence is based in creativity, hence the need for the artist to be aware of how copyright works , including using cc (s).

    The ability to set creative commons licences is crucial to artistic activity, I discussed here : http://poethead.wordpress.com/2011/03/23/poetry-and-digitisation-how-derivatives-occur/

    Derivatives in poetry include translation, adaptation (including film/theatre/music/ artistic image) Artists have been using gnu/cc *for a generation* based in their awareness that the arts seed ideas, and that the artist /originator retains the moral and intellectual rights to ownership of their work through the setting of permissions.

    I appealed to DETI in my first submission (June 2011) for recognition of the arts based in conventions (including Berne) and ongoing manifesto discussions on the issue. The current base of CRC discussion is narrow and not cognisant of how artistic practice would be impinged by a top-down regime of copyright law. The parameters of discussion need be widened to look at the originators of works in how they expect and understand how their work is used by other artists.

    In example, I only use cc (by-NC-ND) for original works and I only publish previously published works on my my blog, because I cannot afford remedy in law if ripped off- thus a tiny % of my material is online because of self-restriction : balance this against a corporate entity and their resources. there is a disparity inherent in legal remedy based wholly in resource at the moment. Add to that the issue of loss : if DDoS or any other denial of service occurs (incl isp-blocking) I lose three- to four years of writing – again my original work, and it is not subject to remedies that are affordable.

    Artists need assurances and laws that protect their works and rights, these laws must be cognisant of their right to set permissions and to have confidence in methods of transmission. The base for copyright discussion needs to include and involve those advocacies with expertise in the area and this is not confined or should be weighted to business and corporates.

    If the base of copyright discussion is not broadened to include art’s practice it is a creative disservice to Irish arts, and a refusal to recognise creative practice including those mentioned above : translation, adaptation , visual art and film.

  2. […] Bloggers, users of GNU , Creative Commons (copyleft) and Wikimedia Commons should be aware of the ongoing call for submissions to the 2012 Copyright Review Committee 2012 detailed here .  […]

  3. […] Committee’s Consultation Paper briefly considers the position of collecting societies. Where rights-holders have established such societies to grant licences in copyrighted works and collect copyright […]

  4. […] Chapter 4 – Rights-holders (summary) […]

  5. […] Chapter 4 had earlier considered the centrality of rights-holders in copyright law, but the law recognises other interests as well, and seeks to balance the interests of rights-holders in protecting their monopoly against other legitimate interests in diversity. In particular, by protecting only “original” works, by preventing only “substantial” infringements, and by providing a range of exceptions, copyright law accommodates interests other than those of rights-holders, such as those of users. One of the main questions for the Review is whether the copyright balance between rights-holders and users now requires further amendment, in particular to incentivise innovation. […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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