Copyright reform gets a welcome Christmas present

Harp and copyrightModernising Copyright, the Report of the Copyright Review Committee [CRC], was published in October 2013. It contained an extensive draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013 to implement its recommendations. Senator Seán Barrett has now introduced a Private Member’s Bill into the Seanad to enact that draft Bill. Entitled the Copyright and Related Rights (Innovation) (Amendment) Bill 2015, leave to introduce it was granted on Wednesday, 2 December 2015; and the Bill itself was published this morning.

The text is the same as that of the CRC’s draft Bill, except in four respects. First, the current Bill updates the CRC’s Bill to accommodate the European Union (Certain Permitted Uses of Orphan Works) Regulations 2014 (SI No 490 of 2014), which incorporates the Orphan Works Directive (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 20121 on certain permitted uses of orphan works) into Irish law. As a consequence section 11 of Schedule 1 to the Act is amended to exclude orphan works caught by SI No 490 of 2014 from the functions of the Copyright Council established pursuant to section 2 and that Schedule of the Bill; and the new section 16C of the Copyright and Related Rights Act, 2000, as inserted by section 3 of the Bill, is amended to bring the appeals provided by SI No 490 of 2014 within the general scheme of appeals in the Bill.

Second, the current Bill is amended to include a scheme of private copying levies in conjunction with private copying exceptions. In Modernising Copyright, the CRC recommended agains against making private copying exceptions subject to levies. This reflected the recommendations in the Vitorino Report to the EU Commission (see Poort and Quintais (2013) 4 (3) JIPITEC 205 (SSRN | pdf)), but that was undermined by the decisions of the CJEU in Case C-467/08 Padawan v SGAE and Case C-572/13 HP v Reprobel. Moreover, the absence of levies from the UK’s private copyright exception was the basis of a successful challenge in the High Court (see R (on the application of British Academy of Songwriters, Composers And Authors) v the Secretary of State for Business, Innovation And Skills [2015] EWHC 1723 (Admin) (19 June 2015) and [2015] EWHC 2041 (Admin) (17 July 2015)), so that the exception has now been abandoned. As a consequence, section 29 of the Bill provides for a private copying levy system. At eight pages of the Bill, it is a comprehensive provision, constructed upon two main planks. First, section 29 integrates the collection of such levies into the provisions of the 2000 Act (here and here) as they already relate to licensing bodies. Second, section 29 integrates this licensing and collecting scheme into the provisions of the Bill as they relate to the powers of the Controller of Intellectual Property (in section 4 of the Bill) and appeals to the Courts (in section 5 of the Bill). [A third plank could have extended this approach to licensing and collecting schemes to include the collecting societies mentioned in section 125, 208 and 298 of the 2000 Act; and if the Bill is taken up in some form, thought could be given to this extension]. Furthermore, in line with international best practice (see IPO Study (2011) (pdf) pp10, 28-30, 66; WIPO Survey (2013) (pdf) p9, s6.3), by which a percentage is deducted from private copying levies for social and cultural purposes, the Copyright Council established pursuant to section 2 and Schedule 1 of the Bill would receive a percentage of the private copying levies introduced in this Bill.

Third, the exception which the Committee’s Bill described as “fair use” is in this Bill described as “reasonable dealing”. As the Explanatory Memorandum (pdf) says:

The reasonable dealing exception was described as a fair use exception in the Copyright Review Committee’s Report and Bill. This is probably because the Committee’s Terms of Reference directed them to “examine the US style ‘fair use’ doctrine”. However, the exception in their Bill differs so substantially from the US fair use doctrine that describing it in those terms is misleading. Instead, it is described here [as] a reasonable dealing exception. Reasonableness is a familiar standard in a great many aspects of Irish law; and dealing is a familiar standard in Irish copyright law. Together, they better capture the essence of the defence provided in section [28] of the present Bill.

And, fourth, the section on the short title, collective citation and commencement of the Bill, which appeared in the CRC Bill as section 1, has been moved to section 32, the last section of the current Bill. This is a very minor change, except that many of the section references in the Explanatory Memorandum accompanying the Bill are all to the Bill with that section as section 1.

A little while ago, my colleague Prof Giuseppe Mazziotti and I discussed the future of copyright at an event hosted by the Science Gallery in Trinity College Dublin. You can watch a recording of the event here (via YouTube). At exactly the same time, the Center for International Intellectual Property Studies in the University of Strasbourg hosted a similar discussion between Prof Christophe Geiger, Director General of the Centre, and Andrus Ansip, Vice President of the EU Commission for the Digital Single Market. You can watch a recording of the event here. Both discussions looked to the then forthcoming EU copyright reform proposals, which have since been published. At the Dublin event, I said that Senator Barrett’s Bill was imminent. I am delighted that it has now been published. As I said in the title, the process of copyright reform has received a very welcome Christmas present. I hope that it proves to be the spirit of copyright’s future.