Category: Copyright

I am a signatory to the following:

Open Letter to the European Commission – On the Importance of Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring within the Information Society

Recent developments, starting with the Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe released on 25/05/2016, followed by a series of proposals (Proposal for a Directive amending the Audiovisual Media Services Directive, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market) and soft law initiatives (the EU Internet Forum against Terrorism and the Code of Conduct on Countering Illegal Hate Speech Online) seriously put at risk the consistency and integrity of the EU acquis related to the information society.

A key component of this acquis is the prohibition of general monitoring obligations to the benefit of providers of intermediary services. It is a means to achieve at least two central objectives: the encouragement of innovation as well as the protection of fundamental rights of all Internet users, namely the rights protected by Articles 8 and 11 of the European Convention of Human Rights. Yet, the proposed Copyright Directive, in particular, seems to negatively affect both the domain and effect of Article 15 of the E-Commerce Directive. The signatories of this open letter therefore urge the European Commission to take into account the human rights dimension of Article 15 of the E-Commerce Directive, as made explicit by the Court of the Justice of the European Union, and to make sure its implications are carefully examined across sectors.

There are blogposts by other signatories are here (Eleonora Rosati on IPkat) and here (Sophie Stalla-Bourdillon on peep beep!); and the letter can be downloaded here.

Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

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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.

This is a call for help. I would like suggestions as to what should, and should not, be in a National Anthem Bill – either in the comments below, via the contact form on this blog, by email, on a postcard, or even by means of carrier pigeon (or messenger raven) …

In four recent posts (here, here, here, and here) I’ve been looking at various issues around the national anthem. The context has been Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016, but the analysis has ranged much more widely than that. And it has become clear to me that there are lots of gaps in the story of our national anthem. Some of those gaps could be filled by legislation, and so I am trying to work out what that legislation might provide.

I am conscious that, to a man with a hammer, every problem looks like a nail; and to a lawyer, every problem looks like it can be solved with legislation. A hammer isn’t always the solution to DIY problems, and legislation isn’t always the solution to social problems. So, I want to identify not only the issues around the anthem that could admit of a legislative solution, but also the issues where legislation would be unsuitable or ill-advised. Hence my call for suggestions as to what should, and should not, be in a National Anthem Bill.

I agree with Senator Daly that the anthem should be treated with respect and dignity, and that legislation could protect it from inappropriate commercialization, but I do not think that copyright is a suitable means to this end. In a previous post, I commented that if legislation is to be used for this purpose, then it should set out exactly what is protected, what that protection means, and what the standards of protection are. Hence, rather than just criticizing, I would like to be able to offer an alternative solution that respects the national anthem, and protects it from inappropriate commercialization, but without going too far.

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My last three posts (here, here, here) have looked at some copyright issues around the national anthem. Their immediate context was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016 (effectively reviving a Bill that he had introduced into the last Seanad earlier in the year). To provide a little lighter reading on the topic, here are 4 sets of bonus links about the copyright, the anthem, or both.

Bonus 1: Alex Marshall (blog | twitter), author of Republic or Death!: Travels in Search of National Anthems (Penguin | Amazon), writing in the Irish Times (h/t Alex’s blog), put “The Soldier’s Song” into the context of other national anthems. It’s a very entertaining piece. While he bemoans the relative obscurity of Peader Kearney and Patrick Heeney, he consigns Liam Ó Rinn to oblivion – he finishes the piece with the first line of “Amhrán na bhFiann”, but he doesn’t name-check Ó Rinn at all!

Bonus 2: I was on the the Marian Finucane show on RTE Radio 1 the Sunday morning before last (listen here), on The Last Word with Matt Cooper on TodayFM the following Monday evening (listen here), and on the Shaun Doherty Show on Highland Radio the following Wednesday morning (listen here until the end of the week). On the latter two shows, it was just the presenter, Senator Daly, and myself, However, on the Marian Finucane show, as Marian was on holiday, the show was hosted by Brendan O’Connor; the others on the panel in the studio were Philip McCabe (Director, MABS), Brian Hayes (Fine Gael MEP for Dublin) and Sinead O’Carroll (News Editor, theJournal.ie); and we were joined on the phone by Senator Daly (listen here). At the end of the discussion on the National Anthem, we were joined by Stuart Clark (Deputy Editor, Hot Press) and writer & journalist Sinéad Gleeson, to discuss the UK’s 60 official biggest selling albums of all the last 60 years (listen here).

The discussion covered not only what makes it on to such a list (greatest hits, recent releases) but what doesn’t (almost any musically influential pop or rock album ever), and some of the copyright stories behind the albums. It seems you can’t have a high-profile song these days without its accompanying copyright suit, whether it’s “Happy Birthday” being held to be out of copyright, to Robin Thicke and Pharrell Williams’s “Blurred Lines” being held by a jury to have infringed copyright in Marvin Gaye’s “Got to Give It Up”, or Led Zeppelin’s “Stairway to Heaven” being held by a jury not to have infringed copyright in Spirit’s “Taurus”. As to copyright stories from the albums on the list, Number 2 is Abba “Gold – Greatest Hits”, which includes “Chiquitita”, from which Abba shared the copyright and thus royalties with UNICEF. Number 3 is the Beatles’ “Sgt Pepper’s Lonely Hearts Club Band”, some of the most lucrative US copyrights in which are owned by Michael Jackson’s estate, as Jackson outbid Paul McCartney in 1985, though McCartney is now working on various means of getting them back.

However, probably the two most famous pop music copyright infringements of all time feature on that top 60. At number 10 is Queen’s “Greatest Hits, Vol 2”, which includes Queen/Bowie’s “Under Pressure”, copyright in which was infringed by Vanilla Ice in “Ice Ice Baby”. The case settled out of court, but Mercury and Bowie now have writing credits on (and therefore get royalties from) “Ice Ice Baby”. At number 18 is the Verve “Urban Hymns”, which includes “Bittersweet Symphony”, which infringed the copyright in the Rolling Stones’ “The Last Time”. Again, the case settled out of court; but the writing credits for “Bittersweet Symphony” are now “Jagger/Richards/Ashcroft”; and all of the royalties go to the music company that owns the rights to “The Last Time”.

Bonus 3: There’s a Trinity connection with the anthem. For many years, the most familiar version was probably the orchestral arrangement used by the national television station, RTÉ, at the close of transmission each day. It was composed in 1961 for the launch of RTÉ’s television service by Brian Boydell (1917-2000), Professor of Music at Trinity; this is the version that was in use from 1961; this is a version that was used during Easter Week 1966; and this was the last closedown version:

Bonus 4: Here’s a 25-minute documentary on the anthem, produced by One Productions for the national Irish language television channel TG4. It is mostly in Irish with English subtitles, though some of the contributions are in English:

Bonus 5: “The Anthem Sprinters” (imdb | YouTube ) is an episode of The Ray Bradbury Theatre (a series than ran on US tv from 1985 to 1992). The episodes were written by science fiction writer Ray Bradbury, and many were based on short stories or novels he had written. “The Anthem Sprinters” is the title piece in a collection of plays based on the his experiences in Ireland while writing the screenplay for the 1956 adaptation of “Moby Dick”. In “The Anthem Sprinters”, an American author on a visit to Dublin stops by a pub where he is caught up in the excitement over a local sporting event known as “anthem sprinting.” In this challenge runners compete to see who can get out of the cinema fastest during the pause between the end of the film and the start of the Irish national anthem.

Enjoy!

A national anthem is a hymn or song expressing patriotic sentiment, from prayers for a monarch, to allusions to nationally important uprisings, to expressions of national feeling. It is usually recognised by a nation’s government as the official national song, though it often emerges by convention through use by the people. “Kimigayo” is the Japanese national anthem, and its lyrics are the oldest text of a national anthem in the world, dating from an anonymous ninth century poem (though the anthem was not formally legislatively established until 1999). The oldest musical setting of an anthem still in use is the “Wilhelmus“, the Dutch national anthem (an early version of which is pictured above left). It was written between 1568 and 1572 during the Dutch Revolt against Spanish rule; and, although it was the de facto Dutch anthem for almost four centuries thereafter, it was only officially adopted in 1932.

Given their antiquity, there can be no copyright issues with the Japanese or Dutch anthems. The Irish national anthem, on the other hand, is a different story. In my previous two posts (here and here), I sought to unravel the fascinating but tangled story of its copyright, some of which I discussed on the Marian Finucane show on RTE Radio 1 last Sunday morning (listen here) and on The Last Word with Matt Cooper on TodayFM on Monday evening (listen here). The immediate context of those discussions was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) (No 2) Bill 2016 (effectively reviving a Bill that he had introduced into the last Seanad earlier in the year).

The chorus of “The Solider’s Song” (composed in 1907; words by Peadar Kearney (1883-1942); music by Patrick Heeney (1881-1911)) was formally adopted as the national anthem in 1926. By the end of the 1930s, the chorus of the Irish language translation “Amhrán na bhFiann” (words by Liam Ó Rinn (1886-1943), set to the Heeney’s music) eclipsed the English language version, and has now completely taken over as the national anthem in popular usage, though it seems never to have been formally adopted by the State. In my previous two posts (here and here), I explored the copyright history of all these versions of the anthem. The stories are tangled, but the position is now quite clear. After two deals – in 1933 and 1965 – the State owned the copyright in the music and English language version (“The Soldier’s Song”) of the national anthem, and this copyright persisted until 1 January 2013. If, as seems likely, Ó Rinn was an employee of the State when he composed “Amhrán na bhFiann”, then the State owned copyright in it until 1 January 1974. If, however, Ó Rinn was not an employee of the State at that stage, then his copyright in it will have persisted until 1 January 2014. Hence, all copyrights in the national anthem have now come to an end. Senator Daly’s Bill would revive at least some of them; and, in this post, I want to explain why I think that this is a thoroughly bad idea. (more…)

Most states have national anthems. Just as states come in all shapes and sizes, so there is a great variety in anthems. Some (such as Spain) have no words at all; others, (in states with multiple national languages, such as South Africa) are multi-lingual.

Given that Article 8 of the Irish Constitution provides that the Irish language is the first official language of the State, and that the English language is recognised as a second official language, it is unsurprising that the national anthem comes in both official languages. However, the story of the emergence of both versions is not straightforward. In my previous post, I discussed “The Soldier’s Song”, the music and English language version of the national anthem. In this post, I want to discuss “Amhrán na bhFiann”, the Irish language version of the anthem. The stories are fascinating but tangled; and, as I said in my previous post, I discussed some of them on the Marian Finucane show on RTE Radio 1 last Sunday morning (listen here). Since then, I was also The Last Word with Matt Cooper on TodayFM yesterday evening (listen here). In both cases, I was discussing Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) Bill 2016 (reviving a Bill that he had introduced into the last Seanad earlier in the year).

By way of background to a detailed discussion of Senator Daly’s Bill in my next post, I discussed in my previous post some of the copyright issues that have arisen relating to the music and English language version of the national anthem. The chorus of “The Soldier’s Song” was adopted as the national anthem in 1926. Following deals in 1933 and 1965, the State owned the copyrights in the music and the English language version of the anthem. These copyrights persisted until 1 January 2013, when they lapsed by effluxion of time in the usual way. However, the English language version quickly lost out to “Amhrán na bhFiann“, the Irish language version of the anthem, which is now almost invariably sung instead, even though there seems to be no government decision formally approving this practice. And the copyright issues relating to “Amhrán na bhFiann” are just as knotty as those relating to “The Soldier’s Song”.

“Amhrán na bhFiann” was composed by Liam Ó Rinn (pictured above left) – probably in 1923 – as a fairly free translation of Kearney’s English language text of “The Soldier’s Song”, and the versions in both languages are sung to Heeney’s tune. (more…)

I was on the Marian Finucane show on RTE Radio 1 yesterday morning (listen here), discussing copyright in the National Anthem. The immediate context of the discussion was Senator Mark Daly‘s National Anthem (Protection of Copyright and Related Rights) (Amendment) Bill 2016 (reviving a Bill that he had introduced into the last Seanad earlier in the year). The story of the copyright in the national anthem is a fascinating one, with many legal twists and turns, which I will discuss in this post and the next (update: this post and the next were originally one post; but I have divided that post into two; in this post I discuss the copyright issues around the music and the English language version of the words of the anthem; in the next post, I will discuss the issues around the Irish language version). Once I have brought that story of these various versions of the anthem up to date, I will discuss the possible impact of Senator Daly’s Bill in a further post.

Working together in 1907, the music of the national anthem was composed by Patrick Heeney (1881-1911) and the English lyrics of “The Soldier’s Song” were composed by Peadar Kearney (1883-1942) [His first draft, written on copybook paper, sold at auction in 2006 for €760,000]. The text was first published in 1912; it quickly became a popular marching song among the Irish Volunteers; and it was sung by the rebels in the General Post Office during the 1916 Rising and later in the internment camps. The chorus was formally adopted as the rational anthem in 1926; as Ruth Sherry explains (with added links):

… a simple decision was made by the Executive Council to adopt “The Soldier’s Song” as the national anthem for all purposes. The reasons for choosing this rather than another air are not recorded, but it seems likely that by this point “The Soldier’s Song” had become so firmly established by custom that replacing it would prove difficult, and William Cosgrave is on record as wanting to retain it. The decision was not accompanied by any publicity, and was announced only by means of a brief answer to a backbencher’s question in the Dáil on 20 July 1926.

The Irish language version, “Amhrán na bhFiann“, was composed by Liam Ó Rinn in 1923 as a fairly free translation of Kearney’s English language text of “The Soldier’s Song”. This version gradually eclipsed the English language version; and, from the end of the 1930s, the chorus of “Amhrán na bhFiann” eventually took over completely as the national anthem in popular usage, though it seems never to have been formally adopted by the State. I will return to this version in my next post.

Unlike the flag, the national anthem is not provided for in the Constitution adopted in 1937. (more…)