Chapter 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unintended consequence of certain aspects of the Act has the potential to provide for a perpetual copyright in certain unpublished works.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.