Chapter 10 of the Copyright Review Committee’s Consultation Paper addresses the third of the Committee’s four Terms of Reference (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). That third Term of Reference requires the Committee to

examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.

The chapter begins with a consideration of the doctrine in jurisdictions which have adopted it – these include not only the United Stated (see section 107 of the Copyright Act, 1976 (17 U.S.C. § 107) but also Israel (see section 19 of the Copyright Act, 2007 (pdf)), Singapore (see section 35 of the Copyright Act, 1987 as amended), and the Philippines (see section 185 of the Intellectual Property Code of the Philippines (Republic Act No. 8293) (1997) (pdf)). The chapter also refers to jurisdictions which are considering adopting the doctrine – these include not only the United Kingdom (pp 9 & 44-47)) but also Australia (here and here), Israel (pdf) and the Netherlands.

This is a very controversial issue which aroused the greatest passions both in the submissions and at the public meeting. The debate tracked four main arguments. First, the doctrine’s critics argued that fair use subverts the interests of rights holders, whilst the enthusiasts’ argued that it brings balance to the copyright system and accommodates the interests of other parties. Second, for its critics, a significant objection to the fair use doctrine is that it is unclear, and can thus undermine existing business models. On the other hand, for its enthusiasts, the main benefit of the fair use doctrine is that it is flexible, and can thus accommodate new technologies and emerging business models. Third, some critics argued that the fair use doctrine is not, in fact, necessary as Irish law currently stands, because the long-established and well-understood exceptions in the Copyright and Related Rights Act, 2000 (also here) were ample, whilst some said that the addition of the European Union Copyright Directive exceptions (discussed in Chapter 7) would be more than sufficient. On the other hand, enthusiasts for fair use argue that existing exceptions are insufficient to support many aspects of emerging digital business models, and that an approach based on iterated exceptions (even as extensive a list as that contained in EUCD) rather than upon an overarching principle is too inflexible to accommodate technological innovation of the kind that has stimulated the growth of high-tech business in the US. Fourth, some critics argued that there is no evidence that the current copyright system in Ireland is inhibiting innovation, and in particular, that there is no evidence that a fair use doctrine is necessary to encourage innovation. On the other hand, many enthusiasts that innovators in the US benefit greatly from the doctrine, especially in the digital environment.

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Chapter 9 of the Copyright Review Committee’s Consultation Paper considers whether the Copyright and Related Rights Act, 2000 (also here) (CRRA) creates barriers to innovation by heritage institutions (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). As keepers of our cultural heritage from which much innovation can flow, copyright law raises particular issues for heritage institutions such as libraries, archives, galleries, museums, schools, universities and other educational establishments.

Many of the exceptions to copyright in both CRRA and the European Union Copyright Directive relate to educational purposes in general (which are discussed in chapter 7) and to heritage institutions in particular (which we discuss in this chapter). These are important interests in Ireland, given our strong cultural heritage and traditions in art, music and literature. Indeed, one important strand of innovation is likely to be provided by the creative capacity of artists to generate innovative content. In particular, many of the submissions pointed to the important role of libraries and other heritage institutions as repositories of all forms of intellectual heritage – whether print or digital – from which such innovation can flow.

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Chapter 8 of the Copyright Review Committee’s Consultation Paper considers whether the Copyright and Related Rights Act, 2000 (also here) creates barriers to innovation by entrepreneurs (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)).

Although the interests of rights-holders are central to copyright law, the law recognises other interests as well, and entrepreneurs feature on both sides of this balance: sometimes as rights-holders, but increasingly as internet start-ups seeking to develop novel methods of engagement with content. A properly balanced copyright system should seek not only to reward initial creativity but also to encourage follow-on innovation. Hence, as with the balance between rights-holders and users in the previous chapter, one of the main questions for the Review is whether the copyright balance between rights-holders and entrepreneurs now requires further amendment, in particular to incentivise innovation.

The chapter begins by considering the contribution which entrepreneurs make to innovation. They are a key source of the innovation identified in chapter 2, and some of the submissions argued that inflexibility in Irish and EU copyright regimes hinder innovation, and that access to and use of legal digital content ought to be made easier and more attractive in Ireland and Europe. The chapter therefore assesses the extent to which entrepreneurs can or should be able to take advantage of copyright exceptions for the purposes of innovation. Finally, the chapter examines whether it is possible or desirable to craft a specialist copyright adaptation exception for innovation. Read the rest of this entry »

Chapter 7 of the Copyright Review Committee’s Consultation Paper considers whether the Copyright and Related Rights Act, 2000 (also here) creates barriers to innovation by users (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). This is the longest chapter in the Paper, and it raises a great many issues.

Innovation is traditionally presented as a linear top-down process where innovation is the sole preserve of the producer, but it is increasingly an iterative and interactive one in which users play increasingly important roles. This is particularly so online, where technology is making it increasingly easier for users to innovate, and for that innovation to be based upon the transformation of existing content.

Chapter 4 had earlier considered the centrality of rights-holders in copyright law, but the law recognises other interests as well, and seeks to balance the interests of rights-holders in protecting their monopoly against other legitimate interests in diversity. In particular, by protecting only “original” works, by preventing only “substantial” infringements, and by providing a range of exceptions, copyright law accommodates interests other than those of rights-holders, such as those of users. One of the main questions for the Review is whether the copyright balance between rights-holders and users now requires further amendment, in particular to incentivise innovation.

On the one hand, if the exceptions are too broad, this could disincentivise rights-holders; on the other hand, if the exceptions are too narrow, this could stifle user innovation. Read the rest of this entry »

Chapter 6 of the Copyright Review Committee’s Consultation Paper considers whether the Copyright and Related Rights Act, 2000 (also here) creates barriers to innovation by online intermediaries. Intermediaries run up against the copyright interests of rights-holders in several ways: they may be primarily liable for breach of copyright where their own activities infringe copyright; and they may be secondarily liable for breach of copyright where the activities of their users infringe copyright (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)).

First, the most likely way that intermediaries may be primarily liable for breach of copyright is where the technological processes of transmitting data result in transient and incidental copies of the data. Article 5(1) of the European Union Copyright Directive provides a defence in such circumstances which has been transposed into Irish law by section 87(1) and 244(1) of the 2000 Act; and the Paper considers this transposition.

Second, the most likely way in which intermediaries may be secondarily liable for breach of copyright is where the activities of their users infringe copyright; Irish law, implementing a European Directive, now provides for some immunities in certain circumstances from such secondary liability; and the Paper considers this transposition.

The Paper also considers the extent to which linking infringes copyright, and invites submissions as to whether CRRA ought to be amended to provide that a link to copyright material, of itself and without more, should not constitute either a primary or a secondary infringement of that copyright.

The internet is creating new industries and business-models which in turn are raising new issues in the intersection of copyright and innovation. One important example is provided by the business of websites which marshal news from other news sources. Marshalling (a word coined in the Paper as a generic description of indexing, syndicating, aggregating, curating, and so on) is an example of a new generation of digital and online business, but it faces criticism from traditional news rights-holders as infringing copyright in the content which they marshal. The Paper suggests that the issue is considerably more nuanced than this binary division allows, and that there is likely to be a blend of responses to the issue, and it therefore invites submissions in this regard.

As always, the chapter ends with a series of questions which seem to the Committee to arise from the discussion of the position of intermediaries, and it is hoped that the next round of submissions will engage some of these questions (there are 86 questions in total, set out in Appendix 3 to the Paper, and the Committee would be delighted to receive responses to any of them. In particular, it is not necessary for any submission to seek to answer all of them). Any submissions should be received by close of business on Friday 13 April 2012 Thursday 31 May 2012. To make a submission, you can

• email the Review,
• write to Copyright Review, Room 517, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2,
• complete the Committee’s online questionnaire, or
• use any of the other online submission mechanisms being made available by many interested parties.

There will also be a public meeting from 10:00am until 12:00 noon, on Saturday 24 March 2012, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary. To register, you can

• email or write to the Review, as above, or
• complete the Committee’s online questionnaire and answer the last question by confirming that you wish to attend the meeting.

Chapter 5 of the Copyright Review Committee’s Consultation Paper briefly considers the position of collecting societies (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). Where rights-holders have established such societies to grant licences in copyrighted works and collect copyright royalties for distribution back to the rights-holders, they give effect to rights-holders’ rights in a very important practical way, and therefore constitute an important means by which rights-holders manage their copyrights and are rewarded for their investments and innovation.

The Copyright and Related Rights Act, 2000 (also here) provides for licensing schemes and the registration of collecting societies, but this is an bewilderingly byzantine area in practice, and in chapter 3 of the Paper, the Committee raised the question of whether many of those issues could be resolved by means of a body like the Copyright Council sketched in that chapter.

If a Council is not established, this chapter asks if there are any other practical mechanisms which might resolve those issues. It also asks if there are any issues relating to copyright licensing and collecting societies which were not addressed in earlier chapters but which can be resolved by amendments to the Act of 2000.

As always, the chapter ends with a series of questions which seem to the Committee to arise from the discussion of the Council, and it is hoped that the next round of submissions will engage some of these questions (there are 86 questions in total, set out in Appendix 3, and the Committee would be delighted to receive any responses to any of them. In particular, it is not necessary for any submission to seek to answer all of them). Any submissions should be received by close of business on Friday 13 April 2012 Thursday 31 May 2012. To make a submission, you can

• email the Review,
• write to Copyright Review, Room 517, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2,
• complete the Committee’s online questionnaire, or
• use any of the other online submission mechanisms being made available by many interested parties.

There will also be a public meeting from 10:00am until 12:00 noon, on Saturday 24 March 2012, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary. To register, you can

• email or write to the Review, as above, or
• complete the Committee’s online questionnaire.

I’m delighted that lots of people are engaging with the consultation process on the Copyright Review Committee’s Consultation Paper (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). First, the Committee now has a dedicated website and it will be directly linked from the Department’s homepage until the Review process is complete. The Committee’s site provides various ways to participate in the consultation process. As well as by post and email, the Committee has prepared an online questionnaire to reply to the questions they pose in the Consultation Paper.

Second, taking up an invitation from the Minister of State with responsibility for Research and Innovation at the Department of Enterprise, Jobs and Innovation, Seán Sherlock TD, the Irish Internet Association is also providing an online mechanism to facilitate internet stakeholders who wish to respond to the Paper. This will collate the views of its members and of the members of the Internet Service Providers Association of Ireland, and will gather the views of other members of the online community who wish to provide feedback in this way.

Third, Bernie Goldbach and David Brophy have written blogposts listing all of the questions from the Paper, making them very easily accessible indeed (update: I’ve also got around to listing them on this blog as well). And Joe Drumgoole has gone further, providing various web-friendly versions of the Paper.

Fourth, along with the IIA/ISPAI, various other communities are also looking for feedback (eg, libraries, photographers); and poethead has written what seems to me to be the first blogpost actually engaging with an issue in the Paper.

Announcing the Committee’s online questionnaire, and welcoming the the IIA’s survey, the Minister said that he would “also welcome any similar initiatives undertaken by other online representative groups. The wider the consultation on the Committee’s work is, the better the outcome will be”. I agree. As I say in the title to this post, the more, the merrier. Which-ever mechanism you choose, please make your submission before close of business on Friday 13 April 2012 Thursday 31 May 2012.

Finally, there will be a public meeting from 10:00am until 12:00 noon, on Saturday 24 March 2012, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary. To make a written submission, or to register for the public meeting, please email the Review, or write to Copyright Review, Room 517, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2.

By David Mills, on the Courtoons blog.

Bonus link: Open Content.