I noted yesterday that publication of the Copyright and Related Rights (Miscellaneous Provisions) Bill 2016 has come a few steps closer. From the perspective of education, the Bill will implement the Marrakesh Treaty to facilitate access to published works for persons who are print disabled, facilitate distance learning and access to education over the internet, extend copyright exceptions to promote non-commercial research, and affirm that libraries, archives and educational institutions may make copies of works in theirs collection for preservation and exhibition purposes. The Bill will also extend “the existing copyright deposit provisions relating to books to facilitate the creation of a Digital Deposit on a voluntary basis”. Other countries (such as the UK and most other EU countries, Australia, Canada and New Zealand) have extended legal copyright deposit to digital and online publications, but no-one is systematically capturing Ireland’s .ie web domain, and it is on that issue that I want to focus in this post.
The first question is: what is legal copyright deposit? It is the ubiquitous statutory obligation (in Ireland, pursuant to section 198 of the Copyright and Related Rights Act, 2000 (also here) on publishers and distributors to deposit at least one copy of every print publication, free of charge, in designated (pdf) legal copyright deposit libraries. Read more
In August, the Minister for Jobs, Enterprise and Innovation announced that the Government had approved the drafting of a Copyright and Related Rights (Miscellaneous Provisions) Bill 2016. No timetable was provided at that stage. Nor was one provided in the Government’s Autumn Legislative Programme which was published in September. That Programme simply said that the Bill had been referred to the Joint Committee on Jobs, Enterprise and Innovation, but the Bill was not listed for pre-legislative scrutiny by the Committee. Now comes news that, following a briefing by officials of the Department of Jobs, Enterprise and Innovation, the Committee decided that it would not undertake pre-legislative scrutiny of the Copyright Bill (see the Committee’s Work Programme (pdf) s3(c), p5; h/t @johnjcarroll). Whilst it is a pity that the Committee will not afford a first opportunity to point out some concerns with the Minister’s current approach, this does have the advantage of bringing the publication of the Bill itself a few steps closer. Perhaps it might not be too much to hope that copyright reform in Ireland might get a Christmas present this year?
John Naughton began a classic column, on the world of university research being held to ransom by academic publishers charging exorbitant prices for subscriptions, by quoting Sir Patrick Cullen’s observation in George Bernard Shaw’s play The Doctor’s Dilemma that “All professions are conspiracies against the laity”. Then he continued:
To update the observation for a contemporary audience, simply replace the term “professions” with “publishers of academic journals” and you’ve got it in one. For, without the knowledge of the general public, a racket of monumental proportions has been milking the taxpayer for decades.
Most rackets can be prevented by good legal regulation. And a Bill that has just been given a very high chance of enactment demonstrates how that regulation might work. In this post, I want to explain the racket and the Bill, and then show how the legislative strategy in the Bill might provide a regulatory solution to the racket.
2. The Racket
Naughton explains the racket this way:
If you’re a researcher in any academic discipline, your reputation and career prospects are largely determined by your publications in journals of mind-bending specialisation … Everything that appears in such journals is peer-reviewed – that is to say, vetted by at least two experts in the field. … In any major scientific field, success depends on getting your articles published in such high-impact journals.
And not just personal success, either: under the research funding arrangements now in place in the UK and elsewhere, the survival of entire university departments depends on the publication records of their leading academics. So academia has become a publish-or-perish world.
This gives enormous power to outfits like Elsevier that publish key journals. And guess what? They wield that power [with high annual subscriptions] … The result is that unconscionable amounts of public money are extracted from our hapless universities in the form of what are, effectively, monopoly rents for a few publishers. …
But it’s not just the exorbitant subscriptions that stink; it’s the intrinsic absurdity of what’s involved in the academic publishing racket. Most publishers, after all, have at least to pay for the content they publish. But not Elsevier, Springer et al. Their content is provided free by researchers, most of whose salaries are paid by you and me.
The peer reviewing that ensures quality in these publications is likewise provided gratis by you and me, because the researchers who do it are paid from public money. … And then the publishers not only assert copyright claims on the content they have acquired for nothing, but charge publicly funded universities monopoly prices to get access to it. …
There will be a public lecture on the Rule of Law and Asset-Grabbing (Reiderstvo) in Russia in the Neill Theatre, Trinity Long Room Hub, Trinity College Dublin, on Tuesday 15 November 2016, at 3:00pm.
Reiderstvo (asset-grabbing) is the illicit acquisition of a business or part of a business in Russia. A recent report on The Rise of Reiderstvo: Implications for Russia and the West (pdf) by Dr Louise Shelley and Ms Judy Deane analyzes this corrosive phenomenon. The report will be presented by Prof Louise Shelley (George Mason University); there will be a reply by Prof Neil Robinson (University of Limerick); and there will be ample opportunity for questions and answers. The event will be haired by Dr Ann Power-Forde SC (former judge of the European Court of Human Rights).
The first comprehensive examination of its kind, the report on The Rise of Reiderstvo: Implications for Russia and the West analyzes the evolution of business raiding and asset grabbing in Russia. It identifies the methodical tools and tactics used by business raiders and provides concrete examples of heretofore unexamined cases inside Russia, documenting the “playbook” for systematizing asset grabbing.
Prof Louise Shelley is the Omer L and Nancy Hirst Endowed Chair and a University Professor at the Schar School of Policy and Government, George Mason University. She is the founder and Director of the Terrorism, Transnational Crime and Corruption Center (TraCCC) at George Mason University. Her latest book is Dirty Entanglements: Corruption, Crime and Terrorism (Cambridge University Press, 2014). She is at present an inaugural Andrew Carnegie Fellow and a Rockefeller Foundation Residence Fellow writing her current book on illicit trade and sustainability for Princeton University Press.
Prof Neil Robinson is Professor of Comparative Politics at the University of Limerick. His research interests focus on Russian and post-communist politics, particularly the political economy of post-communism and post-communist state building. He is the author of Ideology and the Collapse of the Soviet System. A Critical History of Soviet Ideological Discourse (Aldershot and Brookfield, VT: Edward Elgar, 1995), and Russia: a state of uncertainty (London and New York: Routledge, 2002 (download))
Dr Anne Power-Forde SC was a judge on the European Court of Human Rights, Strasbourg from 2008 to 2014, and is now a member of the Bar of Ireland and of Doughty Street Chambers in London. On the ECHR, she was confronted with many of the most pressing concerns of our time – the legacy of the invasion of Iraq, the annexation of Crimea and other threats to European democracy, the consequences of global terrorism, the refugee crisis in the Mediterranean, the legacy of European genocide and the individual’s search for meaning and autonomy. She has lectured extensively on the Convention and has written on Judicial Ethics in the Court’s Handbook for Judges. She facilitates in judicial training seminars working with magistrates, prosecutors and advocates in the developing world. As an academic, she has over 20 years’ experience of lecturing in Philosophy and in Jurisprudence. In particular, she has developed a course reflecting upon fundamental human experiences and international human rights law which she teaches on a visiting basis at American and European Universities.
All are welcome to attend. Attendance is free, but booking (here, via eventbrite) is essential.
No, this post isn’t about the notes on the forms to be filled in to apply for a passport, or even about explanatory notes that might appear on the passport itself. Instead, it’s a musical post, (about the National Anthem – the most recent in a series, earlier posts are here, here, here, here and here), based on a letter in today’s Irish Times:
In a queue at Dublin Airport last week, my daughter Alex was curious about music notation on successive pages of her passport and asked me to read the music.
To our surprise and delight, it was the music of our National Anthem. Whoever imagined this subtle celebration of Irish musicality should be congratulated.
The image, above left, via TheJournal.ie, shows some of those notes. I saw this letter in the paper version of the Irish Times, and whilst searching online for the letter on the Irish Times site, and for an appropriate image, I also found the following post on the website of Absolute Graphics – a marketing, design and print company based in Bray, Co. Wicklow:
… The challenge was to design a passport that incorporated cutting edge security features while maintaining and reflecting ‘Irishness’ throughout. The Department of Foreign Affairs and Trade appointed Absolute Graphics (as part of a consortium led by [Security Print Group] DLRS Ltd) to create the new passport from design through to finished product. …
On the design side, we combined the traditional with the contemporary. From the entrance stone at Newgrange to the Aviva Stadium in Lansdowne Road, the design celebrates everything Irish – history, poetry and sport, tradition and modernity. … over 60 different design and security features are employed in the passport.
It’s a prize-winning document, and now another of its many careful design features has charmingly emerged like a Venus from the waves. I join in Keith’s congratulations to Absolute Graphics.
The BAI is conducting a review of its strategic objectives (including media pluralism and diversity)
Hot on the heels of the announcement of a review of the Defamation Act 2009 (also here) by the Department of Justice comes news of a consultation by the Broadcasting Authority of Ireland on its Strategy Statement for 2017–2019 (download pdf).
Sections 66(2)(i) and 137(2)(i) of the Broadcasting Act, 2009 (also here) require the BAI to have regard to “the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue amount of the communications media” in a specified area.
Against this background, and in the context of the recent debate about the constitutional issues facing the regulation of media ownership in Ireland, (especially where such regulation is directed to the promotion of pluralism and diversity), the BAI’s proposed Mission Statement provides that it is the aim of the BAI [emphasis added] –
I To regulate, foster and support broadcasting in the public interest;
II To promote a plurality of voices, viewpoints, outlets and sources in Irish media;
III To foster diverse and culturally relevant quality content for Irish audiences.
Moreover, one of the five proposed strategic themes is the promotion of diversity and plurality, with the following strategic objectives:
1 [To] Facilitate a mix of voices, opinions and sources of news and current affairs in audio-visual media which enhances democratic debate and active citizenship in Ireland.
2 [To] Increase the production and availability of culturally relevant audiovisual content for Irish audiences.
3 [To] Foster a media landscape that is representative of, and accessible to, the diversity of Irish society.
Reporting on the launch of the consultation, Laura Slattery in the Irish Times writes (with added links):
BAI chief executive Michael O’Keeffe said the authority also planned to re-examine the media ownership and control policy [pdf] in place since 2012. … The broadcasting regulator could yet become involved in the proposed Independent News & Media takeover of Celtic Media Group’s newspapers – if it is nominated to consider the plurality implications of the acquisition by Minister for Communications Denis Naughten, despite the fact that the deal involves two print groups.
A survey of industry participants [which will be available here in due course] indicated the BAI “is not particularly visible in leading the debate on plurality”, said Karen Hall, account director at research firm Ipsos MRBI.
Given that the recent Report on the Concentration of Media Ownership in Ireland (download pdfs here, here and here; blogged here) calls on the Irish government to tackle Denis O’Brien’s media control, it is interesting to note the BAI’s 2012 position on this issue in the context of their Ownership and Control Policy:
Mr. O’Brien’s company Communicorp controls, and/or has substantial interests in, six independent radio services in Ireland … Mr. O’Brien’s interests in Independent News and Media (“IN&M”) are [also] relevant to the Authority …
At its meeting on 23rd July 2012 the Authority determined that Mr. O’Brien does not control IN&M. Rather he has a substantial interest in the Company, as that term is defined in the Policy. In this regard, the Authority was not obliged to review Mr. O’Brien’s interests in the context of an undue amount of communications media.
Of course, this is only one question amongst many important issues in the consultation. Responses are requested by 12 noon on Thursday, 1st December 2016, by by email or by post to Draft Strategy, Broadcasting Authority of Ireland, 2–5 Warrington Place, Dublin 2.
The Tánaiste and Minister for Justice and Equality has announced a review of the operation of the Defamation Act 2009 (also here), and is now inviting contributions and submissions by 31 December 2016. This is excellent news.
According to the announcement on the Department’s website, the aim of the review is:
– to promote an exchange of views and experiences regarding the operation in practice of the changes made by the 2009 Act,
– to review recent reforms of defamation law in other relevant jurisdictions,
– to examine whether Irish defamation law, and in particular the Defamation Act 2009, remains appropriate and effective for securing its objectives: including in the light of any relevant developments since 2009,
– to explore and weigh the arguments (and evidence) for and against any proposed changes in Irish defamation law intended to better respond to its objectives, and
– to publish the outcomes of the review, with recommendations on appropriate follow-up measures.
Interestingly, the review excludes the blasphemy provisions of the Act (sections 36 and 37), because the issue will be the subject of a constitutional referendum, as provided in the Programme for a Partnership Government. Moreover, the review will take into account any relevant recommendations of the recent Report of the Law Reform Commission on Harmful Communications and Digital Safety.
The Press Council of Ireland welcomed the review and confirmed that it will be making a submission, as has NewsBrands Ireland, the representative body for national newspapers. Similarly, the NUJ told the Irish Times that the “review should be seen as a welcome step for all citizens. It must be a review aimed at enhancing freedom of expression rather than simply a means of reducing defamation costs”. Shane Phelan, in the Irish Independent, also welcomed the
… long-overdue review of Defamation Act, amid continuing concern the size of libel awards in Ireland are having a chilling effect on the media’s role as a watchdog for the public.
This is not the first time that an INM title has argued that the 2009 Act has brought about only limited changes. NewsBrands regularly make a similar point. Both arguments are bolstered by reference to the €1,250,000 damages award in Leech v Independent Newspapers  IESC 79 (19 December 2014). However, although libel damages are indeed still high, this focus is misconceived. That case was decided on the basis of the law as it applied before the Defamation Act 2009, which introduced a whole range of reforms to meet the concerns expressed by INM and NewsBrands. Their arguments would be stronger if they focussed on the reality of the application of the Act and not on an objectionable outcome produced by the unreformed pre-Act common law.
The review is indeed long-overdue, and much to be welcomed. But arguments against the pre-Act law by those who are advocating for further reform do their case no favours. Instead, I hope that the submissions make strong arguments in favour of coherent and effective reform of our libel laws.
A just-published Report on the Concentration of Media Ownership in Ireland (download pdfs here and here) directly addresses the question in the title to this post: what are the constitutional issues facing the regulation of media ownership in Ireland. The Report concludes that such issue do not prevent government action here, and calls on the Irish government to tackle Denis O’Brien’s media control. It seems that some media are ignoring it. That is a pity. It is a very important Report. It was commissioned by Lynn Boylan MEP on behalf of the European United Left/Nordic Green Left (GUE/NGL) group of the European Parliament, and was prepared by Caoilfhionn Gallagher and Jonathan Price, barristers in Doughty Street Chambers, London, and Gavin Booth and Darragh Mackin, of the Belfast solicitors’ firm KRW Law. It was launched in Leipzig (panel | photo) on 6 October last, and in Dublin last night (press notice | photos).
Here’s a flavour of the Report, from the executive summary [with added links to relevant posts on this site]:
1.8 In our view, taken together, the combination of the highly concentrated Irish media market, Mr. O’Brien’s threats and initiation of a large number of legal proceedings against media and other critics, and serious shortcomings in the defamation framework create a perfect storm which threatens news plurality and undermines the media’s ability to perform its watchdog function. … We strongly recommend that these concerns be addressed as a matter of urgency, and be seen to be addressed.
1.13 The Report’s authors are aware of suggestions that there are legal bars to any such action being taken, but we reject any suggestion that it is not legally permissible to address the status quo and that tackling the current concentration of media ownership is impossible given the importance of property rights in the Irish Constitution and/ or the European Convention on Human Rights (“ECHR”). On the contrary, our conclusion is that there is, in principle, no such legal bar. A retrospective mechanism could indeed be permissible under the Irish Constitution, EU law, and the ECHR. …
1.14 However, whilst this matter of principle is clear, there remain complex and nuanced issues to consider. The devil is very much in the detail, and these are difficult issues. What is now needed is a careful review of the detail, and, accordingly, the Report recommends that the Government establish a cross-disciplinary Commission of Inquiry. This Commission should examine the issues closely and make concrete recommendations, within a tight timeframe. [emphasis added; see also para 6.6]
This is an important call, which I hope the government will heed, but I won’t hold my breath. Read more