The non-implementation of the DSM Directive, and the Cathach of St Columba – updated!

Cathach of St Colmba, at RIA; via widipediaThe EU Directive on Copyright in the Digital Single Market (the DSM Directive) was due to be transposed into national law by the EU’s Member States this week. Article 29(1) of the DSM Directive (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) provides:

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021. …

That was last Monday. Had it been Tuesday, it would have been an appropriate date for a copyright Directive to be brought into force in Ireland, as that was the anniversary of the death of St Columba (also known as St Colmcille) in 597 (I have marked this anniversary on a previous occasion on this blog). As Charleton J commented in EMI Records v Eircom Ltd [2010] 4 IR 349, [2010] IEHC 108 (16 April 2010) [28]:

There is fundamental right to copyright in Irish Law. This has existed as part of Irish legal tradition since the time of Saint Colmcille. He is often quoted in connection with the aphorism: le gach bó a buinín agus le gach leabhar a chóip (to each cow its calf and to every book its copy). I regard the right to be identified with and to reasonably exploit one’s own original creative endeavour as a human right. …

Charleton J had made a similar comment in the earlier EMI Records (Ireland) Ltd v Eircom plc [2009] IEHC 411 (24 July 2009), and Budd J referred to the bovine aphorism in PMcG v AF [2000] IEHC 11 (28 January 2000) [14]:

… [I] would echo King Dairmait’s ruling in the dispute between St Columba and St Fintan “to every book its copy”, …

That dispute is described by Frank McNally in an Irishman’s Diary in the Irish Times on 24 April 2020 (already noted on this blog; quoted here with added links to Wikipedia for the dramatis personae):

… [In] Ireland … we also arguably gave the world one of its earliest and greatest judgements in copyright law. That was in the case of [Saint] Colmcille v Saint Finnian (circa 560AD), which began when the former made a copy of a rare religious work – St Jerome’s translation of the Bible – which Finnian had brought back from Rome. … Finnian took exception and appealed to the High King at Tara [King Diarmait], who agreed that the reproduction should be handed over. Hence the famous judgment: “To every cow her calf, to every book her copy”, an idea all the more elegant because books then were made from vellum.

McNally completed this story in an earlier Diary, on 12 April 2010 (again with added wikipedia):

So the cow-calf analogy could hardly have been more apt. Unfortunately, Colmcille did not appreciate its beauty and the dispute escalated into the Battle of Cúl Dreimhne, in AD 561, when 3,000 men died. … There was more involved than copyright, of course. The chain of events leading to war included a typically Irish mixture of politics, death, and hurling. … Even so, the conflict at Cúl Dreihmne became known as the “Battle of the Books”. And the dispute had other far-reaching effects. It was in expiation of his guilt that Colmcille went into exile, to convert the heathens of England and Scotland.

Here’s a video of me talking about this at the 5th Global Congress on IP & the Public Interest hosted by American University Washington College of Law’s Program on Information Justice and Intellectual Property in 2018. Whatever the merits of this account, it makes for a great story, even if Columba comes out of it as a war criminal and copyright pirate, whose guilty conscience led him to the religious acts for which the Celtic Church recognised him as saint. The Library of the Royal Irish Academy has curated a fascinating online exhibition on the Cathach (pictured above left), said to be Columba’s copy of the psalter and of the reliquary which contained it. And for rather more reliable discussions of the copyright dispute, see Jeremy Phillips “St Columba, the Copyright Infringer” [1985] 12 European Intellectual Property Review 350 (pdf, via here); Andrew Ó Baoill “The true significance of the world’s first copyright ruling in its context and for contemporary debate on intellectual property” (2005) (pdf; via here); Ray Corrigan “Colmcille and the Battle of the Book: Technology, Law and Access to Knowledge in 6th Century Ireland” (2007) (pdf, via here).

In any event, the DSM Directive had not been transposed into Irish law by either Monday or Tuesday last; perhaps we will have its implementation by the 1,500th anniversary of the birth of Columba on 7 December next.

Update 1 (9 June 2021): The Sligo Colmcille 2021 festival commemorates the 1500th anniversary of the birth of Saint Columba/Colmcille and his association with Sligo through the Battle of the Books. Among the celebrations will be an exhibition at the Hamilton Gallery about the battle, and a play about the case (Colmcille in the Dock) by Sligo Youth Theatre. This evening (9 June 2021), the festival showed The Battle of the Books – the story of Colmcille and Sligo, a short film telling the legend of Columba’s copyright piracy and the battle at Cúl Dreimhne:

Update 2 (11 June 2021): Communia have a wonderfully light-hearted monitor of implementation of the DSM Directive in the member states; it’s called the Eurovision DSM Contest: the once in a decade copyright reform contest. As to Ireland (on which see their pages here and here), they write (with added links):

… the Department of Business, Enterprise and Innovation held a series of public pre-draft consultations, each focused on a different part of the Directed and all carefully prepared, but a few days ago announced that the Directive was going to be transposed into Irish law by way of regulations contained in secondary legislation, without submitting the actual draft law to public discussion and without further parliamentary debate.