This is not the first time that civil society has had to step up when public functions have stepped back (see the story of the demise and return of KildareStreet.com, with various backups here and here). So, I think that a publicly curated online archive of Oireachtas debates is a fantastic idea, and I hope it prospers. It also provides a context in which I can discuss an important issue relating to Oireachtas copyright and digital deposit.
First, the Oireachtas holds copyright in the broadcast material. Chapter 19 of Part II of the Copyright and Related Rights Act, 2000 [CRRA] (that is, sections 191 to 195 CRRA (also here and here)) provides for Government and Oireachtas copyright. In particular, section 193(2)(b) CRRA (also here) provides that the Oireachtas holds copyright in “any sound recording, film, live broadcast or live cable programme of the proceedings of either House of the Oireachtas”. So, the starting point of the copyright analysis has to be that the Oireachtas could therefore in principle rely on this copyright to restrict the reproduction of the Oireachtas broadcasts, or making them available online.
The copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.
The question, therefore, is whether a publicly curated online archive of Oireachtas debates and hearings is reproduced and made available for the purposes of “reporting” Oireachtas proceedings within section 71 CRRA. There is a comprehensive discussion of the issue by Simon McGarr on his Tuppenceworth.ie blog. I think that the argument that the archive would be a report for the purposes of section 71 CRRA could go a very long way towards permitting the production of a publicly curated online archive of Oireachtas debates and hearings. However, there must be limits to what constitutes a “report”. And it may be that the archive exceeds them, at least in some respects.
Third, if section 71 CRRA isn’t enough, then a current reform process might provide another exception to permit the production of a publicly curated online archive of Oireachtas debates and hearings. Section 198 CRRA (also here) provides for the delivery of print publications by publishers to libraries specified in the Act. Under this copyright deposit or legal deposit obligation, the National Library of Ireland, and the libraries of Trinity College Dublin, the University of Limerick, Dublin City University, and the National University of Ireland, and the British Library, are entitled to copies of books published in the State; and the Bodleian Library in Oxford, the University Library in Cambridge, the National Library of Scotland, and the National Library of Wales, are entitled to claim copies of books published in the State. However, at present in Ireland, this obligation applies only to print publications. In many jurisdictions, this obligation has been extended to cover electronic publications and websites; and I have discussed the extension of Irish law to cover legal deposit of digital publications on this blog (eg, here and here).
Current moves towards reform of Irish copyright law could introduce such a provision. A General Scheme of a Copyright Bill was approved by Government on 4 August 2016. One of the aims of the reform is to extend “the existing copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis”. However, in the Government’s current Legislation Programme for the Autumn Session 2017 (pdf), this Bill is not listed among the 28 priority Bills for publication this session. Nor is it listed among the 30 Bills that are expected to undergo pre-legislative scrutiny this session. Instead, it appears in the catch-all category of 73 pieces of “Other Legislation” which the government may eventually get around to publishing. Clearly, copyright reform is not a legislative priority for the current government. But, if and when the Bill is finally published, the provisions relating to digital deposit may permit the production of a publicly curated online archive of Oireachtas debates and hearings.
It is not entirely clear what the government’s promise to permit “the extension of the existing copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis” (emphasis added) actually means. However, in advance of the Bill, the Copyright Review Committee (full disclosure: I was chair of that committee), in the Modernising Copyright Report (pdf), made comprehensive proposals about reform of Irish copyright law, including the introduction of a digital deposit regime by analogy with the existing print deposit regime. Section 26 of the Bill proposed in the Report thefore recommended the insertion of a new section 198A CRRA, to provide for digital copyright deposit generally. In particular, sections 198A(18) to 198A(20) would permit copyright deposit institutions to make copies of our online digital heritage whilst it is available:
(18) It is not an infringement of the rights conferred by this Act if a Board or authority to which this section applies reproduces any work that is made available in the State through the internet.
(19) Where any work has been made available in the State through the internet without a restriction as to its access or use, then it is not an infringement of the rights conferred by this Act if a Board or authority to which this section applies reproduces that work and makes it available through the internet without a restriction as to its access or use, whether or not that work continues to be available elsewhere through the internet.
(20) For the purposes of this section, a work shall have been made available in the State through the internet where
(a) it is made available to the public either from a website with a domain name which relates to the State or to a place within the State, or by similar or related means, or
(b) it is made available to the public either by a person any of whose activities relating to the creation or the publication of the digital publication takes place within the State, or by a person with similar or related connections to the State.
Section 198A(1) provides that the Boards and authorities to which the section applies are those mentioned in section 198 CRRA (as listed above), and “any other institutions which the Minister might specify”. When it’s online, the publicly curated online archive of Oireachtas debates and hearings will clearly reproduce a work that is made available in the State through the internet (ss198A(18)-(19)), but the group of concerned netizens would not constitute “a Board or authority” mentioned in section 198 CRRA or approved by the Minister pursuant to section 198A(1). So, if the proposed reforms were to be enacted along these lines, then a publicly curated online archive of Oireachtas debates and hearings would either have apply to the Minister for recognition (the receipt of which would probably be a remote prospect), or get one of those copyright deposit institutions to host it (perhaps a less remote prospect, as the harvesting of this type of public data is exactly what ss198A(18)-(20) are designed to permit). However, there is a third possibility. The reforms could expressly include a provision to cover the proposed archive. As set out above, Chapter 19 of Part II CRRA is the part of the Act that provides for Government and Oireachtas copyright, and section 71(1) already provides for one exception to it. So the most limited way of permitting the production of a publicly curated online archive of Oireachtas debates and hearings would be to add a new, specifically tailored, provision at the end of section 71 CRRA, perhaps as follows:
(3) The copyright in a work protected by Chapter 19 of Part II is not infringed by anything done for the purposes of reproducing or making available any sound recording, film, live broadcast or live cable programme of proceedings in the Oireachtas, or for the purposes of commenting upon such proceedings.
Being able to call our elected representatives to account, and access to information for the purpose, are of the essence of democracy. The current controversy demonstrates that a publicly curated online archive of Oireachtas debates and hearings is so obviously in the public interest that copyright law should not prevent it. More generally, to ensure the virtual world is not lost, we need to be capturing and preserving it. A worldwide effort to stop the web losing its memory, the nonprofit Internet Archive, which harvests 250m webpages a week, will celebrate its 21st birthday on 26 October. It is about time that Irish law permitted similar harvesting, curation and preservation, especially when it comes to public information. Is it too much to hope that the consultation being undertaken by the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, on behalf of the National Library of Ireland, to consider “the legal deposit of published digital material in the 21st century in the context of copyright legislation” (see here and here), could make a recommendation to this effect?