Category: Fair use

Today in the Department of Jobs, Enterprise and Innovation, Minister Bruton and Minister Sherlock launched Modernising Copyright, the Report of the Copyright Review Committee (pdfs: via this site; via the DJEI site [link updated 18 November 2015]) (see barnold law | Business & Leadership | Damien Mulley| DJEI Press Release here and here | Irish Times | infojustice.org | Irish Independent | Technology.ie | The 1709 Blog | TheJournal.ie).

Copyright reform is in the air, in Australia, Canada, Germany, India (pdf), the EU (here, here, here (pdf), and here), the UK, and the US (here (pdf) and here). As part of this process, the Copyright Review Committee (the Committee) was established on 9 May 2011 by the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton (TD). It consisted of Dr Eoin O’Dell (Trinity College Dublin), Patricia McGovern (DFMG Solicitors, Dublin), and Professor Steve Hedley (University College Cork), and it was tasked with proposing solutions for areas of current copyright law that create barriers to innovation.

The Committee established a website for the process, held a public meeting on 4 July 2011, received over 100 written submissions, and published a Consultation Paper on 29 February 2012. The Committee held a further public meeting on 24 March 2012, received in the region of 180 further submissions (including via an online questionnaire) and has now published the Report, which includes a detailed draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013.

Summary
The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links.

The position of rightsowners will be improved, by recommendations to extend remedies, technological protection measures, and rights management information. Furthermore, photographers in particular will benefit from the recommendation that copyright protection for metadata be strengthened.

The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including format- shifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining. Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.

The main recommendations in the Report and the draft Bill
A central recommendation of the Report is 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 provided (section 3 of Bill; and the Schedule). It should be able to establish 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).

In parallel, the Report recommends that the Small Claims procedure in the District Court be extended to include intellectual property claims up to the value of the standard limit of the District Court’s jurisdiction, and that a specialist intellectual property court also be established in the Circuit Court (section 4 of the Bill).

The Report recommends the introduction of tightly-drafted and balanced exceptions for innovation and fair use. Given the significant nature of these changes, the Report specifically recommends that the Minister’s power to determine the date on which they come into operation should be expressly reiterated in these sections, so that they may come into effect on a graduated basis at appropriate times.
As to the recommended innovation exception, the Report recommends 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 (section 21 of the Bill). As to the recommended fair use exception, it is very circumspect, and differs substantially from the US doctrine. The Report recommends the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors (section 29 of the Bill).

The Report recommends 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. The Report further recommends that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words (section 14 of the Bill).

The Report recommends explicit protection for digital watermarks and other metadata applied to photographs: a definition of metadata is provided (section 2(2) of the Bill), and the Report recommends not only that copyright protection be extended to metadata, but also that its removal should amount to an infringement of copyright (section 9 of the Bill).

The Report recommends amending the definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world (section 16 of the Bill). It also recommends the introduction of the full range of exceptions permitted by EU law. Five of these relate to private use: reproductions on paper for private use; format-shifting; back-ups; parody; and non-commercial user-generated content (all in section 16 of the Bill). Other recommended exceptions relate to news (section 15 of the Bill), religious or official celebrations (section 16(3)(b) of the Bill), public administration (section 20 of the Bill), education (section 17 of the Bill), disability (section 18 of the Bill), heritage institutions (section 22 of the Bill), copyright deposit libraries (section 25 of the Bill), content-mining (section 27 of the Bill), and digital research and computer security (section 28 of the Bill). Moreover, users and consumers should benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void (section 19 of the Bill).

Finally, the Report recommends that there should be a review of the operation of the changes made by the Bill five years or so after it comes into force (section 30 of the Bill).

Conclusion
The Advanced Research Projects Agency Network (ARPANET) was one of the world’s first packet-switching networks; it was the first network to implement TCP/IP; and packet-switching and TCP/IP are at the heart of the modern internet. On this day in 1969, at 10:30 pm, the first-ever computer-to-computer link was established on ARPANET; and the image, left, is an excerpt from a log describing that transmission. The internet has come a long way since this first ARPANET message was sent, and it is one of the developments which have made necessary the modernisation of copyright considered in the Report. No doubt the Department of Jobs, Enterprise and Innovation will have to consult with various government departments, public bodies, and other stakeholders; and there will be further public meeting on 9 December next in the Royal Irish Academy (RIA). In advance of that meeting, I will, in my forthcoming posts, look in some detail at the Report and its Bill.

And so to Cork, for the Irish Learning Technology Association‘s 14th annual education technology conference on the theme of “Opening up Education – Content, Learning and Collaboration”. I will be talking this afternoon on “Copyright, Technology and Education”. Given the topic of the conference, my focus is on whether copyright reform can open up education, facilitate greater access to content, and encourage collaboration in learning and teaching. The context of this talk is the Copyright Review Committee Consultation Paper (you can download a pdf of the Paper here (via DJEI) or here (from this site); and summaries of each of the chapters are linked from this page), which made many recommendations relating to education, including adding “education” to the “teaching and research” exceptions, making thorough provision for reproductions for persons with a disability, and extending copyright deposit to digital works. Here are my slides (pdf); there is a live-stream here; and I’ll put a link here to the video in due course.

The Copyright Review Committee has announced a limited extension of time for submissions. There has been a good response to the Committee’s wide-ranging Consultation Paper (you can download a pdf of the Paper here (via DJEI) or here (from this site); and summaries of each of the chapters are linked from this page).

However, although the date for submissions has already been extended from Friday 13 April 2012 to Thursday 31 May 2012, there have been many further requests for another extension. The Committee has therefore decided to extend the closing date to close of business on Friday 29 June 2012, in the following two limited circumstances only:

• first, parties who intend to make a submission to the Committee, but who feel that they cannot do so before the existing deadline of close of business Thursday 31 May 2012, should apply to the Committee before that date for an extension until close of business on Friday 29 June 2012. The Committee will consider such requests on a case-by-case basis.
• second, the Committee will soon publish on their website – probably here – every submission that will have been received by the current deadline of 31 May 2012, and the Committee will accept responses to those submissions until close of business on Friday 29 June 2012.

The online questionnaire will be available only until Thursday 31 May 2012. Thereafter, submissions which have specifically been granted an extension until close of business on Friday 29 June 2012, or responses to other submissions, should be made either by email or by post to Copyright Review, Room 517, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2. Submission by email is preferred; and, where this is done, respondents are requested to ensure that electronic submissions are furnished in an unprotected format.

It worth noting again that this is a limited extension, only for two specific purposes. However, It has always been the intention of the Committee to post submissions on their website to encourage engagement, consultation and participation, and this limited extension will facilitate this objective.

At the end of each of its chapters, the Copyright Review Committee‘s Consultation Paper poses questions based on the analysis in the relevant chapter on which further responses are sought (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). The questions are presented here by chapter. If you want the questions based on a particular chapter, click on the “questions” link after the chapter name immediately below. If you want the full list, just keep reading this post.

• Chapter 2 – The Intersection of Innovation and Copyright in the Submissions (questions)
• Chapter 3 – Copyright Council of Ireland (questions)
• Chapter 4 – Rights-holders (questions)
• Chapter 5 – Collecting Societies (questions)
• Chapter 6 – Intermediaries (questions)
• Chapter 7 – Users (questions)
• Chapter 8 – Entrepreneurs (questions)
• Chapter 9 – Heritage institutions (questions)
• Chapter 10 – Fair Use (questions)
• Final questions in the Paper (questions)
• Additional questions in the online questionnaire (questions)
• How to make a submission.

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As the title of the post says, this post has three updates about the work of the Copyright Review Committee. First, following a large number of requests for an extension of time to reply to the Committee’s Consultation Paper, the Committee has decided to extend the deadline for receipt of submissions to 5.00pm on Thursday 31 May 2012 (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). Second, the text to three of the questions on the first page of the Committee’s online questionnaire has been updated to confirm that certain information provided by respondents (such as postal address, email address, and website) will not be published.

Third, the Committee is delighted that Mr Dáithí O’Ceallaigh, Director General of the Institute of International and European Affairs and Chairman of the Press Council of Ireland, has agreed to chair the public meeting on the Paper. Mr O’Ceallaigh joined the Department of Foreign Affairs in 1973. He went on to assume posts in Moscow, London, Belfast and New York, before serving as Ambassador to Finland and Estonia (1993-1998), Ambassador to the United Kingdom (2001-2007), and Ambassador to the United Nations in Geneva (2007-2009), as well as the World Trade Organisation and the Conference on Disarmament in Geneva. In 2008, in Croke Park, he headed a small Irish team which negotiated the Convention to Prohibit Cluster Munitions which cause unacceptable harm to civilians.

The public meeting will be held next Saturday, 24 March 2012, from 10:00am until 12:00 noon, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. The meeting will be divided into eight 15-minute question-and-answer segments, covering (i) the proposed Copyright Council; (ii) rights-holders; (iii) collecting societies; (iv) intermediaries; (v) users; (vi) entrepreneurs; (vii) heritage institutions; and (viii) fair use. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary. To register, you can

• email the Review,
• write to Copyright Review, Room 517, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2, or
• complete the Committee’s online questionnaire and answer the last question by confirming that you wish to attend the meeting.

I look forward to seeing you there!

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 India (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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