Irish copyright law must enable digital deposit (updated and corrected)

Helen Shenton; via (element)In an earlier post, I took Frank McNally’s Irishman’s Diary from the weekend as the starting point to explore the modern constitutional relevance of the leading copyright case of Donaldson v Becket (1774) 2 Bro PC (2d) 129, 1 ER 837, [1774] EngR 47 (22 February 1774) (pdf); (1774) 4 Burr 2408, 98 ER 257 (pdf). It is one of the most famous cases in the history of copyright law; and McNally’s point was that one of the counsel for the successful party hailed originally from Co Roscommon. Before getting to my discussion of the case, I noted that the column had been illustrated with a picture of a young reader in the Long Room of Trinity College Dublin’s Old Library. The column and image also moved my Trinity colleague Helen Shenton (pictured left), our Librarian and College Archivist, to respond, in her case by way of a Letter to the Editor:

Digital black hole in our national memory

Sir, – Frank McNally’s amusing observations about Ireland’s long chequered relationship with copyright history (An Irishman’s Diary, April 25th) was illustrated by a photograph of the gallery of the beautiful Long Room in the Library at Trinity College Dublin.

The library’s gallery rapidly filled up with books when, in 1801, Trinity College Dublin became a Copyright Library by Act of the British parliament, and the library continues to receive UK publications on behalf of the island of Ireland.

This right was recently extended to the legal deposit of UK electronic publications, and the library can now provide on-site access to hundreds of thousands of e-books, e-journals and tens of millions of UK websites. Unfortunately, the same cannot be said for Irish websites. Last year’s Copyright and Other Intellectual Property Law Provisions Act extended the preservation of Irish digital publications to Irish copyright libraries. Websites, however, were excluded and so there is no legally mandated, comprehensive archive of the Irish web domain. A total of 20 of the 28 member states of the European Union have legislation for capturing their country’s national web domain. Whilst the National Library of Ireland voluntarily captures websites, and Trinity’s Library Trinity invites the voluntary storage of government electronic publications into its edepositIreland, the lack of legislation means there is essentially a digital black hole in Ireland’s national memory.

Much of the living witness of this very momentous time in the nation’s history is happening on the web. There are individual projects and initiatives being created, such as Trinity Library’s Living in Lockdown, and the National Library’s selective Covid web collecting, but until there is legislation to ensure systematic capture of the Irish web domain, this loss of the vivid memory of Covid-19 will seriously affect the future understanding of Ireland’s contemporary society. – Yours, etc,

Librarian and College Archivist,
Trinity College Dublin,
Dublin 2.

I could not agree more. With the rise of digital publishing, it is increasingly being recognised that print deposit is incomplete, and that a comprehensive preservation of a nation’s published heritage requires that copyright deposit should extend to online publications as well. I have explored this point several times on this blog. First, the Copyright Review Committee considered the issues surrounding extending copyright deposit to digital publications. Legal deposit provided by section 198 of the Copyright and Related Rights Act 2000 (also here) [CRRA] is an important instrument of national cultural policy. I was the chair of that committee; and, in our Report Modernising Copyright, we recommended that the existing legal copyright deposit provisions ought to be extended to digital publications. To that end, we proposed a comprehensive new section 198A (and extracts from the Report and accompanying Bill dealing with digital copyright are available here (pdf)). The Government’s eventual response to this recommendation was that it would extend “current copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis” (emphasis added). At the time, it was not clear to me exactly what the emphasised words meant:

The Modernising Copyright Report proposed that the copyright deposit institutions could decide which digital publications and internet resources they wish to claim and how they wish to claim them. If the “voluntary basis” mentioned in the press release reflects this proposal, that would permit those institutions to claim or collect the digital publications which they see as important. However, if the “voluntary basis” means that compliance on the part of publishers or websites is optional, this would not reflect international best practice. Worse, if publishers do not comply with digital deposit requests, then that would entirely undercut the very reasons for digital deposit in the first place. Non-compliance would render the whole process pointless, the digital deposit provisions would become a legislative dead letter, and we would end up on the wrong side of history.

In response to a consultation carried out by the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs, I argued that the policy of collecting, preserving and making available the published output of the nation for the benefit of the public should be extended to include all contemporary publication formats of Irish interest including online digital formats, such as .ie websites; that if this is not provided for, large amounts of important data will be lost (the digital black hole to which Helen refers above); and that the benefits would be not only cultural but also economic:

The loss of culturally significant data diminishes AI data-sets and impoverishes decisions based upon them. More generally, a proper archive of digital publications will be a resource for citizens and researchers, at home and abroad, now and in the future. The generations to come will not thank us if we do not legislate now for legal deposit of digital publications.

Not long afterwards, I considered the copyright implications of a publicly curated online archive of Oireachtas debates, and argued again that the Department’s consultation should recommend that Irish law permit the harvesting, curation and preservation of public information. Digital materials often have peculiarly short lifespans.

When the Government ultimately published a Bill “to implement certain recommendations” of the Modernising Copyright Report [note the grudging “certain”], its approach to digital deposit was even more limited than its initial response had been. Section 27 of the Copyright and Other Intellectual Property Law Provisions Bill 2018 (as initiated; pdf) proposed to amend section 198(4) CRRA to extend the copyright deposit regime to ebooks, but did not provide for the harvesting of the .ie domain. Section 27 remained unamended in the version of the Bill (pdf) that passed the Dáil. But an amendment put forward by Deputy James Lawless (Fianna Fáil), and accepted by the government, added a new section 106 requiring that, within twelve months of the enactment of the Bill, the Government would “bring forward a report on the feasibility of establishing a digital legal deposit scheme to serve as a web archive for .ie domain contents and advise on steps taken towards that goal”. In the Seanad, Senator Fintan Warfield (Sinn Féin) successfully proposed an amendment that provided for the harvesting of the .ie domain. This was excellent news as a matter of principle, and an important step in making Irish copyright law fit for the digital age. However, in an unseemly fit of pique, the Government successfully reverse Senator Warfield’s amendment. All that remained was a commitment to bring forward proposals within a year.

The very partial position is now to be found in sections 29 and 108 of the Copyright and Other Intellectual Property Law Provisions Act 2019 (also here) [COIPLPA], which provide:

Amendment of section 198 of Principal Act
Section 198 of the Principal Act is amended by the substitution of the following subsections for subsection (4):

“(4) Where, on or after the commencement of section 29 of the Copyright and Other Intellectual Property Law Provisions Act 2019, subsection (1) applies to the publisher of a book referred to in that subsection, a Board or authority referred to in that subsection may, by notice in writing given to the publisher, request that the copy or copies of the book that the Board or authority is entitled to have delivered to it under that subsection be delivered to it in physical form or electronic form, or both, and the publisher shall comply with that request unless the publisher has already given the copy or copies in the form or forms requested before the publisher received that notice.

(4A)(a) Where, on or after the commencement of section 29 of the Copyright and Other Intellectual Property Law Provisions Act 2019, a digital publication is first published in the State by a publisher, a Board or authority referred to in subsection (1) may, by notice in writing given to the publisher, request that the publisher comply with that subsection, in so far as that subsection relates to the Board or authority making the request, as if the digital publication were a book referred to in that subsection and the publisher shall comply with that request and subsection (2) shall be construed accordingly.

(b) In paragraph (a), ‘digital publication’ means any publication published online or offline which is made available to the public in a medium other than print (including any publication in any digital or electronic or other technological form, but does not include any sound recording or film or any combination thereof).”.

Digital legal deposit scheme
Within twelve months of the enactment of this Act the Government shall bring forward a report on the feasibility of establishing a digital legal deposit scheme to serve as a web archive for .ie domain contents and advise on steps taken towards that goal.

Section 198(4A) permits a copyright deposit institution to ask for a digital copy instead of a hard copy of a book due under copyright deposit. But its reach is very partial. It does not permit the institution to seek the digital copy as well as the hard copy, and often there are differences between the two that would make this desirable. It does not cover works that are exclusively digital; update this is left to the additional section 198(4A); and it too is very partial, and will leave end update this is a yawning chasm now which will become steadily vaster as publishing moves increasingly (and more and more often, exclusively) online, since it does not permit such an institution to harvest the .ie domain (even though the National Library is already doing so). And, while it covers the (mostly Irish) Boards and authorities referred to in subsection (1) of section 198 CRRA, it excludes the (exclusively UK) libraries referred to in subsection (5)§. At best, this is a paltry concession to late twentieth century publishing (in 1998, the first dedicated eBook readers were launched, and the first ISBN issued to an eBook was obtained); and it is unworthy of an Act intended to modernise Irish copyright law and make it fit for the digital age. It is a thoroughgoing disgrace that the Government has wilfully kept Irish law so backward in this respect.

As for the review envisaged by section 108 COIPLPA, the Act was commenced on 29 November 2019 correction: 2 December 2019, and the Government currently has a lot on its plate, so a review is unlikely to be concluded by 29 November correction: 2 December this year. However, we may hope for a report in due course which finally brings Irish law into line with best international practice. Indeed, the current crisis shows just how much of a missed opportunity the 2019 Act is. As Helen says in her letter above

… until there is legislation to ensure systematic capture of the Irish web domain, this loss of the vivid memory of Covid-19 will seriously affect the future understanding of Ireland’s contemporary society.

When legislation is being enacted to transpose the current copyright Directive, the opportunity should be taken to amend section 198 CRRA to provide more comprehensively for digital deposit. The most perfunctory solution would be to adopt Senator Warfield’s amendment. The most thorough would be to adopt the Copyright Review Committee’s recommendations(pdf). It cannot come quickly enough.

Note 1
§ The Boards and authorities referred to in section 198(1) CRRA [and thus included in section 198(4A)] are the National Library of Ireland, Trinity College Dublin, the University of Limerick, Dublin City University, the National University of Ireland, and the British Library. The libraries referred to in section 198(5) CRRA [and excluded from section 198(4A)] are the Bodleian Library, Oxford, the University Library, Cambridge, the National Library of Scotland, and the National Library of Wales. I am grateful to my colleague Dr Christoph Schmidt-Supprian for bringing this omission to my attention.

Note 2
The deletions, correction, and updates were done on 11 December 2020. Again, I am grateful to Christoph for bringing these issues to my attention.