Modernising Copyright: The Report of the Copyright Review Committee #CRC13

CRC_Report_Cover_ThumbnailToday in the Department of Jobs, Enterprise and Innovation, Minister Bruton and Minister Sherlock launched Modernising Copyright, the Report of the Copyright Review Committee (pdfs: via this site; via the DJEI site [link updated 18 November 2015]) (see barnold law | Business & Leadership | Damien Mulley| DJEI Press Release here and here | Irish Times | infojustice.org | Irish Independent | Technology.ie | The 1709 Blog | TheJournal.ie).

Copyright reform is in the air, in Australia, Canada, Germany, India (pdf), the EU (here, here, here (pdf), and here), the UK, and the US (here (pdf) and here). As part of this process, the Copyright Review Committee (the Committee) was established on 9 May 2011 by the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton (TD). It consisted of Dr Eoin O’Dell (Trinity College Dublin), Patricia McGovern (DFMG Solicitors, Dublin), and Professor Steve Hedley (University College Cork), and it was tasked with proposing solutions for areas of current copyright law that create barriers to innovation.

The Committee established a website for the process, held a public meeting on 4 July 2011, received over 100 written submissions, and published a Consultation Paper on 29 February 2012. The Committee held a further public meeting on 24 March 2012, received in the region of 180 further submissions (including via an online questionnaire) and has now published the Report, which includes a detailed draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013.

Summary
The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links.

The position of rightsowners will be improved, by recommendations to extend remedies, technological protection measures, and rights management information. Furthermore, photographers in particular will benefit from the recommendation that copyright protection for metadata be strengthened.

The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including format- shifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining. Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.

The main recommendations in the Report and the draft Bill
A central recommendation of the Report is the formation of a Copyright Council of Ireland, as an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures provided (section 3 of Bill; and the Schedule). It should be able to establish a Digital Copyright Exchange (to expand and simplify the collective administration of copyrights and licences), a voluntary alternative dispute resolution service (to meet the need for an expeditious dispute resolution service outside the court system), and an Irish Orphan Works Licensing Agency (to provide a solution to the problem of orphan works).

In parallel, the Report recommends that the Small Claims procedure in the District Court be extended to include intellectual property claims up to the value of the standard limit of the District Court’s jurisdiction, and that a specialist intellectual property court also be established in the Circuit Court (section 4 of the Bill).

The Report recommends the introduction of tightly-drafted and balanced exceptions for innovation and fair use. Given the significant nature of these changes, the Report specifically recommends that the Minister’s power to determine the date on which they come into operation should be expressly reiterated in these sections, so that they may come into effect on a graduated basis at appropriate times.
As to the recommended innovation exception, the Report recommends that it should not be an infringement of copyright to derive an original work which either substantially differs from, or substantially transforms, the initial work (section 21 of the Bill). As to the recommended fair use exception, it is very circumspect, and differs substantially from the US doctrine. The Report recommends the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors (section 29 of the Bill).

The Report recommends that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. The Report further recommends that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words (section 14 of the Bill).

The Report recommends explicit protection for digital watermarks and other metadata applied to photographs: a definition of metadata is provided (section 2(2) of the Bill), and the Report recommends not only that copyright protection be extended to metadata, but also that its removal should amount to an infringement of copyright (section 9 of the Bill).

The Report recommends amending the definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world (section 16 of the Bill). It also recommends the introduction of the full range of exceptions permitted by EU law. Five of these relate to private use: reproductions on paper for private use; format-shifting; back-ups; parody; and non-commercial user-generated content (all in section 16 of the Bill). Other recommended exceptions relate to news (section 15 of the Bill), religious or official celebrations (section 16(3)(b) of the Bill), public administration (section 20 of the Bill), education (section 17 of the Bill), disability (section 18 of the Bill), heritage institutions (section 22 of the Bill), copyright deposit libraries (section 25 of the Bill), content-mining (section 27 of the Bill), and digital research and computer security (section 28 of the Bill). Moreover, users and consumers should benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void (section 19 of the Bill).

Finally, the Report recommends that there should be a review of the operation of the changes made by the Bill five years or so after it comes into force (section 30 of the Bill).

Conclusion
CRC_Report_Cover_ThumbnailThe Advanced Research Projects Agency Network (ARPANET) was one of the world’s first packet-switching networks; it was the first network to implement TCP/IP; and packet-switching and TCP/IP are at the heart of the modern internet. On this day in 1969, at 10:30 pm, the first-ever computer-to-computer link was established on ARPANET; and the image, left, is an excerpt from a log describing that transmission. The internet has come a long way since this first ARPANET message was sent, and it is one of the developments which have made necessary the modernisation of copyright considered in the Report. No doubt the Department of Jobs, Enterprise and Innovation will have to consult with various government departments, public bodies, and other stakeholders; and there will be further public meeting on 9 December next in the Royal Irish Academy (RIA). In advance of that meeting, I will, in my forthcoming posts, look in some detail at the Report and its Bill.

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