From last Friday’s Irish Times (with added links):

Review aims to open up new digital creative space

The Copyright Review Committee is trying to take on board as many viewpoints as possible, writes Karlin Lillington.

… Several successive governments have highlighted digital businesses as an area for major growth in the economy. It’s a sector heavily wooed by IDA Ireland, and also promoted by Enterprise Ireland. But for years, this sector has been critical of Irish copyright law … However, from big multinationals such as Google on down to small indigenous start-ups and individual content creators such as musicians and artists, digital innovators think there’s plenty of room for improvement and argue that this would not only unleash greater national creativity, but would also help drive expansion in the economy. New industries would see Ireland as a good legal environment in which to do business, they say. …

The submissions reflect the interests and concerns of the whole panoply of players across many digital industries … There are submissions from the rights holders, who were concerned to protect copyright; from the intermediaries – the people like Google who are the gateways to the internet – and from the users, the SMEs and entrepreneurs and those trying to do interesting, creative things and who want to consider new business methods, new businesses, and new applications. … The aim of the committee is to look at all of those interests and try to encourage digital innovation. …

Yesterday morning, I chaired a public meeting of the Copyright Review Committee (#CRC11). The Committee was set up in May to identify solutions for any aspects of the current copyright legislation that create barriers to innovation, and in particular to consider whether a US-style ‘fair use’ doctrine to see if it would be appropriate in an Irish or EU context. Today, I read a provocative criticism of the event by photographer Dominic Lee:

© Copyright Act Review by Dominic Lee

… While this was a “Review”, it quickly became clear to me that the committee’s agenda is to attempt to introduce “Fair Use” to the Copyright Act 2000. However, the term “Don’t Want to Pay” is more appropriate in each and every aspect of those in favour of this change.

… Media publications would never dream of publishing a painting by Graham Knuttel or an extract from a Maeve Binchy book without asking their permission first but many of them have no problem riding rough-shot over Photographers work because they know there is a very slim chance that we could afford to sue for breach of Copyright. … Photographers make a living by selling photographs and deserve to be treated with the same respect as musicians, artists, and writers. There is great advertising value to be gained by using our images on the www but the Copyright Law must protect us from those who wish to make a living at our expense. Fair Use is not Fair Play.

From a more general perspective, David Brophy (Partner, FRKelly, Dublin) provided an immediate and excellent summary of the event on the 1709 Blog: Read the rest of this entry »

In an anncoucement that I have heard at many sporting occasions, there is one change to the team as listed in the programme. In this context, we have one change for the Copyright Review Committee public meeting at 8:30 next Monday morning, 04 July 2011, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block, Trinity College Dublin (map here). Darragh Doyle won’t be able to give his presentation, but we are delighted to announce that David Cochrane, founder and editor of leading current affairs website Politics.ie will take his place on the team-sheet. I will chair, and the other speakers will be Brian Fallon, co-founder of Distilled Media, and TJ McIntyre, Chairman of Digital Rights Ireland. Speaking about the announcement of the public meeting, the Minister for Research & Innovation, Seán Sherlock said:

it is important that we get a clear understanding of the effects of copyright policy, and in particular the economic effects of possible changes to existing copyright law. It is for this reason I feel it is necessary to consult with as wide a range of stakeholders as possible.

In my view, this public meeting is a key element of the Committee’s fact-finding, and I would encourage all those with a strong interest in Ireland’s copyright legislation to attend and air their views. It is important for the Committee that there is good interaction at the meeting and that a variety of views and ideas from the different copyright interests are presented.

The Copyright Review Committee will hold a public meeting at 8:30 next Monday morning, 04 July 2011, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block, Trinity College Dublin (map here).

I will chair, and the other members of the Committee will be in attendance. We will all be in listening mode, so we hope to hear many contributions from as wide a range of interests as possible. Our speakers are

• Brian Fallon, co-founder of Distilled Media, Ireland’s largest exclusively online publisher. They operare some of Ireland’s most popular internet brands including thejournal.ie (a news website where users read, share and shape the daily news agenda) daft.ie (Ireland’s largest property website) and Adverts.ie (a local classifieds marketplace for new and used items).
• Darragh Doyle, Communications Manager of Boards.ie, Ireland’s largest online community.
• TJ McIntyre, Chairman, Digital Rights Ireland, a body devoted to defending Civil, Human and Legal rights in a digital age.

The speakers will have about 5 minutes each to explain how copyright helps or hinders them, and what impact the Committee’s terms of reference will have on them, as a way of leading to comments from the floor. In many ways, the points made, difficulties raised, and ideas floated at the discussion are most important aspect of the morning. It would be great if you could come along and have your say, but please do let us know in advance if you can.

Last month, to maximise the potential of digital industry in Ireland, the Minister for Jobs, Enterprise and Innovation, Richard Bruton T.D., set up a Copyright Review Committee to identify any areas of Irish copyright legislation that might create barriers to innovation and to make recommendations to resolve any problems identified. The Committee consists of yours truly (TCD), Prof Steve Hedley (UCC), and Ms Patricia McGovern (DFMG Solicitors). Our review is similar to, but more limited than, Digital Opportunity, the review of intellectual property law and economic growth conducted by Prof Ian Hargreaves for the UK’s Intellectual Property Office. Rather than looking at the full range of intellectual property issues that Hargreaves did, our terms of reference have a much tighter focus on copyright and innovation; we have been asked to

• examine the present national copyright legislation (also here) and identify any areas that are perceived to create barriers to innovation,
• identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation,
• examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context, and
• if necessary, make recommendations for changes to EU Directives.

We have issued a call for submissions, the closing date for which is now 5:00pm on Thursday 14 July 2011. We are delighted with the response so far; but, as the Minister for Research and Innovation, Sean Sherlock T.D., highlighted this afternoon, we are particularly interested in receiving submissions from users of digital content and from start-up companies in the digital environment. Moreover, as Minister Sherlock also emphasised, we have to date

… received very little empirical evidence on the economic effects of copyright policy, and in particular on the economic effects of possible changes to existing copyright law. I think it is important that the Review Committee should receive more submissions setting out and/or building on such economic evidence.

We hope to publish a Consultation Paper and to invite further submissions on it, and to submit our final Report to the Minister before the end of the year.

As part of the current consultative phase of our work, there will be a public meeting about the Review at 8:30am on Monday 4 July 2011, 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 submission, or to register for the public meeting, please email the Review.

Finally, please note that this Review is separate and distinct from the parallel consultation – in response to the decision of Charlton J in EMI Records v UPC [2010] IEHC 377 (11 October 2010) – on amending the legislation to allow rights-holders to seek injunctions against intermediaries such as ISPs whose services are used by third-parties to infringe copyright.

A little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works. The fundamental (even if increasingly questioned) justification for this development is that the copyright monopoly encourages the creation of original works.

This development of copyright has been a very slow process, but two current issues are putting significant pressure on this slow pace. The first is the evolution beyond the static to the plastic described by Johnny Ryan; the second is that the rate of this change is exponentially faster than heretofore. Copyright rules rules created for static texts which at best change slowly are rules that are ill-adapted to faster change and inappropriate to the modern reality of plastic texts. Read the rest of this entry »

As I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.

She examined the main rights of each of the three main involved: rights holders, subscribers, and intermediaries. Read the rest of this entry »

Last Friday morning, I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy (Irish Times | SiliconRepublic here and here). It was hosted by Google Ireland and co-sponsored the by Institute for International and European Affairs (IIEA); and the morning was very ably chaired by TJ McIntyre (blog | Chair, Digital Rights Ireland | Consultant, Merrion Legal | UCD). There were five presentations; in this post, I’ll deal with the first two; in the next tomorrow’s post, I’ll deal with the remaining three; and in a third post, I’ll add a few comments of my own on some of the issues raised by the seminar.

First up was Johnny Ryan (IIEA | author A History of the Internet and the Digital Future) speaking on “A hinge in history: the conditions of the digital future and the need of rights reform”, and setting the scene for the debates that would follow. (Update: Johnny comments below that video of his presentation is now available). For him, we live in the age of the perpetual beta. Before Gutenberg’s printing press, hand-transcribed manuscripts made information fluid. By contrast, after Gutenberg, the printed book fixed information in static form. But now, online, information is very flexible and plastic, again. Consider a wikipedia page: everything is open to challenge and experimentation – and perpetually beta. We are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Because of the internet, we have moved from a read-only (RO) culture to a read-write (RW) culture, a remix culture, where we can all adapt and re-invent, and this participation can be anywhere: anyone can be Andy Warhol, and the internet can be your Factory. This is the hinge in history of his title.

He argued that as we have moved from a RO to a RW culture, so can we move from RO to RW business. Read the rest of this entry »