Category: Fair use

The Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 is announced

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Speaking at the National Council for the Blind of Ireland, the Minister for Jobs, Enterprise and Innovation, Ms Mary Mitchell-O’Connor TD, today announced the long-promised Government approval for the drafting of a General Scheme of Bill entitled the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016. The Bill is in response to the Modernising Copyright Report published in October 2013, compiled by the Copyright Review Committee appointed in 2011. But the response does not cover all of the issues in the Report. Instead, the main issues covered the Heads will include:

• Facilitating access to books for persons with a disability, paving the way for ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled;

• Improving educational use, to permit teachers use modern day technology such as whiteboards without fear of infringing copyright, and to facilitate distance learning and education over the internet, in line with the changing provision of education and training in Ireland;

• Improving access to the Courts system for intellectual property claims, in particular to facilitate lower value IP infringement cases to be brought before the District and Circuit courts;

• Extending current copyright exceptions to promote non-commercial research including the introduction of a Text and Data Mining copyright exception into Irish law;

• Extending current copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis;

• Creating an exception for use of copyright works to allow for caricature, satire and parody;

• Extending the concept of fair dealing in copyright works for purposes of news reporting;

• Making it an infringement, in the context of photographs, to tamper with metadata associated with the photographic works; and

• Allowing libraries, archives and educational institutions to make a copy of a work in its collection for preservation purposes and for catalogues for exhibitions, and so on.

All that is available is a press release. Draft heads of a Bill as approved by the Government are not usually published, and that is the case here too. Instead, they have been sent to the Office of Parliamentary Counsel for formal drafting in line with the policy intentions approved by the Government. And so we will have to wait a little longer for the Bill, to see for certain what has been included, and to be sure what has been left out. But there are some notable omissions from the draft Bill included in the Modernising Copyright Report:

• the Copyright Council – a central recommendation in the Report was the formation of a Copyright Council of Ireland, as an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures. It would have provided a forum in which the Irish copyright community could work towards solutions on difficult copyright issues. And it could have established a Digital Copyright Exchange (to expand and simplify the collective administration of copyrights and licences), a voluntary alternative dispute resolution service (to meet the need for an expeditious dispute resolution service outside the court system), and an Irish Orphan Works Licensing Agency (to provide a solution to the problem of orphan works).

Just before Christmas last year, Senator Seán Barrett introduced a Private Member’s Bill into the Seanad to enact recommendations in the Report. Given that the Bill the Minister has now announced was obviously imminent in her Department even then, it is no surprise that Senator Barrett’s Bill did not prosper, but it did contain some important changes from the draft in the Report. One of those related to Orphan Works, to accommodate the European Union (Certain Permitted Uses of Orphan Works) Regulations 2014 (SI No 490 of 2014), which incorporates the Orphan Works Directive (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 20121 on certain permitted uses of orphan works) into Irish law.

• Users and consumers – the Report contained a range of recommendations relating to users and consumers; in particular, it recommended amending the current definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world, and it recommended the introduction of the full range of private use exceptions permitted by EU law. The silence on these issues is ambiguous. On the one hand, it may be that they are not headline issues apt for a press release; on the other hand, it may be that they are indeed to be omitted from the Bill.

Another of Senator Barrett’s updates to the Report would have introduced a scheme of private copying levies in conjunction with private copying exceptions. The absence of such a scheme from the UK’s private copying exceptions was the basis of a successful challenge in the High Court (see R (on the application of British Academy of Songwriters, Composers And Authors) v the Secretary of State for Business, Innovation And Skills [2015] EWHC 1723 (Admin) (19 June 2015) and [2015] EWHC 2041 (Admin) (17 July 2015)).

• Linking – Interconnectedness by linking is at the very heart of the internet, so the Report recommended that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. It further recommended that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link.

• Innovation, and Fair Use – the Report recommended the introduction of tightly-drafted and balanced exceptions for innovation and fair use. The innovation exception would have provided that it should not be an infringement of copyright to derive an original work which either substantially differs from, or substantially transforms, the initial work. The fair use exception would have been very circumspect substantially different from the US doctrine, and based on existing exceptions.

Another of Senator Barrett’s updates to the Report would have described the “fair use” exception as “reasonable dealing”, for the following reason (pdf):

The reasonable dealing exception was described as a fair use exception in the Copyright Review Committee’s Report and Bill. This is probably because the Committee’s Terms of Reference directed them to “examine the US style ‘fair use’ doctrine”. However, the exception in their Bill differs so substantially from the US fair use doctrine that describing it in those terms is misleading. Instead, it is described here [as] a reasonable dealing exception. Reasonableness is a familiar standard in a great many aspects of Irish law; and dealing is a familiar standard in Irish copyright law. Together, they better capture the essence of the defence provided … the present Bill.

How long will it take the Office of the Parliamentary Counsel to draft the Bill? How long is a piece of string? On the one hand, the Report contains a very detailed draft Bill, so there is – at the very least – a roadmap for the route to legislation. On the other hand, the Oireachtas Committee on Jobs, Enterprise and Innovation may wish to have pre-legislative scrutiny (explanations (pdf) here and here) of the Bill, to scrutinise to general scheme of the Bill and report back to government before a final version of the Bill is drafted, so there is – at the very least – the possibility of a detour on that route. It is fantastic news that we have reached this point; and I shall just have to be patient, waiting for the next steps on that route.

Note: this post was edited on Friday 9 September 2016.

How soon will the government approve copyright reform?

Harp and copyrightA recent discussion in the Seanad suggests that a copyright reform Bill will be brought to government very soon. The discussion focussed on the need for efficient enforcement of IP rights in Irish courts, but it was placed in the broader context of copyright reform in general, and the Minister for Jobs, Enterprise and Innovation promised to bring a full package of copyright reform proposals to Government “before the summer recess”. That is due at the end of this week, which means that the copyright reform Bill would have to have been considered by the Government at today’s meeting. But there is nothing on the websites of the Department of the Taoiseach or the Department of Jobs, Enterprise and Innovation to suggest that it was discussed or approved today. Nevertheless, the discussion in the Seanad is suggestive that we will see the government’s reform proposals very soon. Copyright reform is yet another step closer. I greatly look forward to its arrival.

The discussion arose from the following question posed by Senator Ivana Bacik on the Commencement of the Seanad on Wednesday, 29 June 2016:

The need for the Minister for Jobs, Enterprise and Innovation to inform the House when she proposes to implement the recommendation of the Copyright Review Committee in its report Modernising Copyright, published in October 2013, concerning the extension of the small claims procedure in the District Court to include intellectual property claims up to the value of €15,000, as provided for within the draft Statutory Instrument prepared by the Committee.


Copyright reform comes a little closer still

Harp and copyrightLast week, under the title Copyright reform comes a little closer in Ireland, I wrote about the copyright priorities of the Department of Jobs, Enterprise and Innovation, as set out in the Brief (pdf) to that department’s incoming Minister. This post is by way of a short update. The Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. One of them is a proposed Copyright and Related Rights (and Miscellaneous Intellectual Property Matters) (Amendment) Bill (see p15). The aim of the Bill is to implement certain recommendations of the Copyright Review Committee to modernise Irish copyright law, with some other ancillary necessary legislative changes to copyright. And Heads of the Bill are “expected in June 2016”. We’ll see whether the Heads are published before the end of the month. But, whether or not they are, this listing means that we are one step closer to copyright reform in Ireland.

Copyright reform comes a little closer in Ireland

DJEI Brief for MinisterFurther to my post on the Brief (pdf) to the incoming Minister for Education, I note this morning that a similar Brief (pdf) to the incoming Minister for Jobs, Enterprise and Innovation has been published on that Department’s website. Under the heading “immediate priorities in the months ahead” (section 1.3, p5) I was delighted to see the following priority:

(p) A Bill to provide for amendments in the Copyright area

It is proposed to submit for Government approval before summer 2016, a Memorandum for Government with draft Heads of a Bill seeking approval to draft a Bill aimed at achieving certain reforms and modernisation of certain aspects of copyright. [p8]

Similarly, under the heading “key priorities for the Innovation and Investment Division” (section 2.2, p22), I was delighted to see the following priority (emphasis added):

(b) Intellectual Property
(i) Implement a new certification scheme for Intellectual Property to enable small companies to qualify for the Knowledge Development Box (KDB) alongside legislation to underpin this initiative and, separately progress necessary legislative changes to patents legislation;
(ii) Continue preparatory work in the lead up to a referendum on ratification by Ireland of an international Agreement setting up a Unified Patent Court to adjudicate on patent litigation;
(iii) Progress amendments to copyright legislation in response to recommendations in the Report of the Copyright Review Committee.
(iv) Examine and negotiate proposals in the Intellectual Property area emerging from the European Commission in the context of the Digital Single Market and, the Single Market Strategy;
(v) Examination of legislative commitments in the Intellectual Property area to facilitate Ireland’s bid for upcoming major sporting events. [p23]


Copyright reform gets a welcome Christmas present

Harp and copyrightModernising Copyright, the Report of the Copyright Review Committee [CRC], was published in October 2013. It contained an extensive draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013 to implement its recommendations. Senator Seán Barrett has now introduced a Private Member’s Bill into the Seanad to enact that draft Bill. Entitled the Copyright and Related Rights (Innovation) (Amendment) Bill 2015, leave to introduce it was granted on Wednesday, 2 December 2015; and the Bill itself was published this morning.

The text is the same as that of the CRC’s draft Bill, except in four respects. (more…)

The present of copyright – where are we now with copyright reform?

cIn advance of tomorrow’s event on the future of copyright, I thought I’d write a few words about where we are now with copyright reform in Ireland and the EU. The twin legislative bases for Irish copyright law date from the turn of the millennium: the Copyright and Related Rights Act, 2000 (also here) and the EU Copyright Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society; the InfoSoc Directive). In Modernising Copyright, in October 2013, the Copyright Review Committee recommended various changes to the 2000 Act to adapt it better for the digital age. The EU Commission is moving towards making recommendations with a similar aim.

In January 2012, the EU Commission began a consultation process on reform of the InfoSoc Directive (SEC(2011) 1640 final) (11 January 2012). In parallel, it considered copyright licensing, intermediary responsibilities (notice and action) and private copying levies (pdf). Although the probable conclusions of the consultation process were leaked in 2014, they were never formally published. Among their number seems to have been a recommendation that the exceptions to and limitations on copyright provided by the InfoSoc Directive should be harmonized at a European level, so that every state should provide for the same exhaustive exceptions and limitations. I had mixed feelings about this. On the one hand, this would have been good for copyright users, who could make greater use of copyright works. On the other hand, it would have prevented competition between members states to attract inward investment from information technology companies on the basis of a more attractive copyright policy than that available in competing member states; (this was the basis on which, in Modernising Copyright, the CRC recommended that all of the InfoSoc exceptions and limitations be incorporated into Irish law). Moreover, I was dismayed that the list of exceptions and limitations would be exhaustive and closed, without the possibility of a safety value to take account of technological developments.


The future of copyright


Tuesday, 24 November 2015 – 18:00 to 19:30


Paccar Theatre, Science Gallery, Trinity College Dublin.

Digitisation of creative works and exponential growth of web-based communications have made the enjoyment of music, films, books, TV and much more, almost ubiquitous. Alongside this, fast internet and the increasingly wide use of smartphones and portable devices has enabled users to exchange and easily share these files. Yet, the body of law that has traditionally aimed to ensure an economic incentive and reward to content creators and producers – broadly defined – has suffered for more than fifteen years from an identity crisis.

Join me in conversation with my Trinity colleague Giuseppe Mazziotti in a discussion around the commercial, technological, cultural and societal implications of the current review of the copyright framework undertaken in the context of the EU Digital Agenda, where European policy makers are seeking to ensure a more effective, uniform and acceptable definition of copyright’s scope and of its online enforcement techniques [see COM(2015) 192 final (pdf)].

The occasion for this talk is the publication by the European Parliament of a Review of the EU copyright framework [available here; pdf] which was co-authored by Giuseppe Mazziotti. The Parliament has already adopted a Report recommending copyright reform; and a legislative proposal is due very soon from the Commission. Moreover, in an Irish context, there will be an assessment of the current state of play relating to Modernising Copyright, the 2013 Report of the Copyright Review Committee (pdf here).

Admission to the event is free, but registration is advised.

Universities (Development and Innovation) (Amendment) Bill 2015 – IV – Staff, Pensions, Innovation and IP

Department of EducationThis is the fourth and final post in a series on Senator Seán Barrett‘s Private Members’ Bill, the Universities (Development and Innovation) (Amendment) Bill 2015, which was discussed last week in the Seanad (earlier posts are here, here and here). Section 7 of the Bill relates to some staff issues. In particular, section 7(1)-(2) would have solved some of the problems associated with the interpretation of section 25(8)(b) of the Universities Act, 1997 (also here) in the Supreme Court in Fanning v UCC [2005] IEHC 264 (24 June 2005), aff’d [2008] IESC 59 (28 October 2008).