Update: this post has been updated and revised, inter alia, to discuss the Irish Copyright Licencing Agency’s licences.


I work in Trinity College Dublin, which announced on Tuesday that education would be delivered online from next Monday. The National Forum for the Enhancement of Teaching and Learning in Higher Education has put together a very useful spreadsheet of links to useful online teaching resources. But, in our race to go online in time to deliver classes to our students, we must not forget that copyright law continues to apply. In that regard, I’m delighted to note that recent reforms to Irish copyright law will make all of our lives easier. The Copyright and Other Intellectual Property Law Provisions Act 2019 (also here) [COIPLPA] amended the Copyright and Related Rights Act 2000 (also here) [CRRA] in various significant ways, in particular relating to online educational uses of copyright material.

Section 50 CRRA provides for an exception of fair dealing for the purposes of research or private study, section 53 provides for an exception for acts done for the purposes of instruction or examination, and section 57 provides for an exception for reprographic copying by educational establishments. Article 5(3)(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10–19) [the InfoSoc Directive] provides that Member States may provide for exceptions or limitations for the sole purpose of illustration for teaching or scientific research. To give full effect to this provision, in 2013, the Copyright Review Committee [CRC] recommended that section 50 be amended to cover “education, research or private study”, that section 53 should be amended to cover “education and examination”, that section 57 be comprehensively amended to provide for “illustration for education, teaching and research”, and that new sections be added to provide for distance learning provided by educational establishments and for the use by educational establishments of work available through the internet (compare the amendments in Canada’s Copyright Modernization Act, 2012).

Section 2(2)(d)-(e) COIPLPA provides expansive definitions of “education” and “educational establishment”; there is no amendment to section 50 CRRA; but Section 45 and Schedule 1 COIPLPA amended section 53 CRRA; and section 15 COIPLPA comprehensively replaced and expanded section 57 CRRA as the CRC had recommended, (as follows, in part update: in full):

Amendment of Principal Act – substitution of section 57
15. The Principal Act is amended by the substitution of the following sections for section 57:

“Illustration for education, teaching or scientific research
57. (1) Subject to subsections (2) to (4), it is not an infringement of the rights conferred by this Part—

(a) to make or cause to be made a copy or communication of a work for the sole purpose of illustration for education, teaching or scientific research or of preparation for education, teaching or scientific research, or
(b) for an educational establishment, for the educational purposes of that establishment, to reproduce or cause to be reproduced a work, or to do or cause to be done, any other necessary act, in order to display it.

(2) Subsection (1) shall apply only if the reproduction or communication is—

(a) made for purposes that are non-commercial,
(b) made only to the extent justified by the non-commercial purposes to be achieved, and
(c) accompanied by a sufficient acknowledgement.

(3) Not more than 5 per cent of any work can be copied under this section in any calendar year.

(4) Where a copy which would otherwise be an infringing copy is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.

Distance learning provided by educational establishment
57A. It is not an infringement of the rights conferred by this Part for—

(a) an educational establishment, for the educational purposes of that establishment, to communicate a work as part of a lesson or examination to a student of that establishment by telecommunication, and
(b) a student who has received such a lesson or examination to make a copy of the work in order to be able to listen to or view it at a more convenient time.

Use by educational establishment of work available through Internet
57B. (1) Subject to subsection (2), it is not an infringement of the rights conferred by this Part if an educational establishment, for the educational purposes of that establishment, makes a copy or communication of a work that is available through the Internet.

(2) Subsection (1) shall not apply unless the copy or communication of the work concerned is accompanied by a sufficient acknowledgement.

Licensing schemes for educational establishments
57C. (1) An exemption in respect of education provided in section 57, 57A, 57B, 61(2), 62(2), 67(3), 92, 221, 225B, 225C, 225D, 229(2), 234(3), 245(3)(a) or 329 shall not apply where—

(a) there is a licensing scheme certified under section 173 that is applicable to the exemption concerned, and
(b) the person making use of the work knew or ought to have been aware of the existence of the licensing scheme.

(2) The terms of a licence granted to an educational establishment on foot of a licensing scheme certified under section 173 shall be void in so far as they purport to restrict the proportion of a work which may be copied or communicated (whether on payment or free of charge) to less than that which would be permitted under section 57, 61 or 62, as the case may be.

(3) Sections 152 to 155 shall apply in relation to a licensing scheme referred to in subsection (1)(a) as if the scheme were one to which those sections applied pursuant to section 150.”

[Update (revised)]: This following licences pursuant to section 57C have been certified under section 173 CRRA (also here) as amended by section 28 COIPLPA (also here) and came into into operation on 25 September 2020:

• The Copyright and Related Rights (Certification of Licensing Scheme for Primary Schools) (The Irish Copyright Licensing Agency Limited) Order 2020 (SI No 275 of 2020) (also here);
• The Copyright and Related Rights (Certification of Licensing Scheme for Post-Primary Schools) (The Irish Copyright Licensing Agency Limited) Order 2020 (SI No 276 of 2020) (also here);
• The Copyright and Related Rights (Certification of Licensing Scheme for Higher Education Institutions) (The Irish Copyright Licensing Agency Limited) Order 2020 (SI No 277 of 2020) (also here);
• The Copyright and Related Rights (Certification of Licensing Scheme for Further Education Providers) (The Irish Copyright Licensing Agency Limited) Order 2020 (SI No 278 of 2020) (also here).

Notes: (i) Regulation 5 of SI No 278 of 2020 revoked the Copyright and Related Rights (Certification of Licensing Scheme For Reprographic Copying by Educational Establishments) (The Irish Copyright Licensing Agency Limited) Order 2002 (SI No 514 of 2002).

(ii) For the sake of completeness, the version of this update before the SIs were made appears in a comment below. [/Update]

This means that much online education is not an infringement of copyright. Of course, our experience in the near future may point up some necessary further amendments. And we will have the opportunity to do so. The InfoSoc Directive has recently been amended by Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.5.2019, p. 92–125) [the DSM Directive]. Article 5 provides for an exception for digital and cross-border teaching activities that is very similar to the CRRA amendments worked by section 15 COIPLPA. The Department of Business, Enterprise and Innovation has conducted a consultation on the transposition of the DSM Directive. That transposition will be the ideal opportunity to amend sections 57, 57A and 57B CRRA (as inserted by section 15 COIPLPA) if that should prove necessary in the light of our current enforced experiment with widespread online education.

[Update] Sadly, that opportunity was not taken when the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 (SI No 567 of 2021) (also here) implemented Directive (EU) 2019/790. Whether the DSM research and education exceptions implemented in Regulations 3-5 of SI 567 will affect any of the analysis above is a matter for a future blogpost. [/Update]

Meanwhile, take care, be safe, and stay well.


Bonus link: Communia Policy Paper #14 on fundamental rights as a limit to copyright during emergencies (html | pdf).

Updates (i) (22 January 2024): Quentin Deschandelliers (Federation of European Publishers (FEP)) “How a licence-based copyright proved to be crisis-proof and fulfilled societal needs” (Kluwer Copyright Blog, 6 December 2023).

(ii) Matthew Rimmer “The Internet Archive and the National Emergency Library: Copyright Law and COVID-19” (2022) 11(5) Laws [with added links]:

… during the COVID-19 crisis … [the] Internet Archive established the National Emergency Library to provide for access to knowledge for those who were unable to access their usual libraries, schools, and educational institutions. … Fearful of litigation, the Internet Archive has decided to close the National Emergency Library earlier than it anticipated [the NEL had opened on 24 March 2020, and closed on 16 June 16 2020]. … there needs to better mechanisms under copyright law to enable access to knowledge in a public health crisis—such as the coronavirus outbreak. … This paper also raises larger considerations about the intersection of copyright law with larger concerns about access to knowledge, competition policy, and public health emergencies.

(iii) Alina Trapova “The exceptional mismatch of copyright teaching exceptions in the post-pandemic university – insights from Germany, Bulgaria, and Ireland” (2023) 14(2) Journal of Intellectual Property, Information Technology & eCommerce Law 307 (JIPITEC).