In today’s Sunday Business Post (as trailed on the front cover, here; element left), I have an OpEd (sub req’d) in which I argue that O’Brien’s case should never have reached the High Court, and that the Department of Justice needs to publish its review of the Defamation Act as soon as possible (you can download it below). It’s part of a bumper collection of articles on the case (spread here and here):
Emmet Oliver: A man named Sue. The eagerness with which Denis O’Brien has taken legal actions in recent years shows the urgent need for a comprehensive overhaul of Ireland’s libel laws.
EU copyright exception would no longer protect British Library scans of pioneering feminist magazine
Spare Rib, the trailblazing women’s magazine that defined generations of feminism, faces the axe from the British Library’s digital archive if there is no Brexit deal, it has emerged
The magazine ran from 1972 to 1993, and all 11,000 articles, cartoons and photographs were made digitally available in 2015 as part of the joint efforts of the British Library (BL) and the Spare Rib Collective.
Polly Russell explains why the Spare Rib resource may be suspended in the event of a ‘no deal’ withdrawal from the EU
In 2015, as part of our commitment to making our intellectual heritage available to everyone for research, inspiration and enjoyment, the British Library digitised and made available the full run of the feminist magazine Spare Rib available via the Jisc Journals platform.
The EU orphan works directive currently allows … material [where the rights-holder cannot be identified after a diligent search] to be made available by cultural heritage institutions. Around 57% of the Spare Rib archive – some 11,000 articles and images from 2,700 contributors – benefits from this protection.
Should the UK exit the EU without a withdrawal agreement, however, we have been advised by the Intellectual Property Office (IPO) that this legal exception will no longer apply. In those circumstances, the Library would have to suspend access to the archive or be in breach of copyright.
And in turn, the Intellectual Property Office’s website explains (in the Explanatory Memorandum (pdf) to the draft Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018) (pdf):
7.10 … the Orphan Works Directive … was inserted by the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014. It provides for a copyright exception for cultural heritage institutions to digitise and make available to the public, across the EU, orphan works (copyright works where the right holder is unknown or cannot be found). The exception works by recognising the orphan status of works across the EU, as long as a diligent search has been completed and the details entered onto a database held by the EU Intellectual Property Office (EUIPO). When the UK leaves the EU, this mutual recognition will fall away and the EU will not recognise the orphan status of works that UK libraries, museums, and other cultural heritage institutions place online, and the UK will not have access to the database held by the EUIPO. Consequently, the European orphan works exception will come to an end on exit. UK cultural heritage institutions will no longer be able to make available online across the EU orphan works, under an exception to copyright. However, cultural heritage institutions in the UK will still be able to make use of the UK’s existing domestic Orphan Works Licensing Scheme …
Unlike other sectors where anomalies like this are dealt with in the politically-controversial Withdrawal Agreement (the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018 (pdf)) (the most recent controversy is here, also from today’s Guardian), the text of Title IV on Intellectual Property is silent on the issue of copyright in general, to say nothing of orphan works in particular. Section 2 of the European Union (Withdrawal) Act 2018 provides a saver for “EU-derived domestic legislation” to continue to have effect in domestic law after the UK leaves the EU. And this is sufficient to save much EU-derived copyright law. But, because of the trans-border operation of the Orphan Works Directive (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ L 299, 27.10.2012, p. 5–12), and the role of the EU Intellectual Property Office (EU IPO) in hosting the Orphan Works Database, section 2 of the Act is insufficient.
Of course, it won’t just be Spare Rib that’s affected, though that makes for an eye-catching headline. It will anything in the British Library’s digital collection that relies on registration with the EU IPO. Moreover, I wonder whether this cuts both ways: to the extent that EU collections rely on British registrations with the EU IPO, will those collections be able to rely on the Orphan Works Directive after Brexit? The logic of the UK IPO’s position suggests not.
Update (26 February 2019): Writing on his Ipso Jure blog, Peter Groves was just as surprised by the Guardian story as I was; and his first thought (just as it was mine) was that the Orphan Works Directive would “surely remain part of UK law”. Even if it is not carried over, he thinks that existing UK orphan work registrations with the EU IPO would continue to have effect in UK law: if the British Library “has published stuff in reliance on the fact that it was in the database then it seems to have complied with” UK law. And he concludes on this point:
It looks as if Cultural Heritage Institutions in the UK will no longer be able to look at the EUIPO database (which seems a bit miserly) so in future it would be impossible to comply with [the UK legislation]: but that doesn’t have to destroy the legal basis for the Spare Rib archive.
The background is well explained by Jennifer O’Connell’s experiences also recounted in last Saturday’s Irish Times magazine. Her story starts with staff members in a hotel asking customers: “If you enjoyed the service, would you minding leaving a TripAdvisor review, and mentioning me by name?” As she explains
It’s not only people in the service industry whose job security now rests on the whims of the terminally irate. If you’re a writer, Goodreads and Amazon reviews are your nemesis. If you’re a driver, it’s Uber. If you rent out your house, it’s Airbnb. If you’re a journalist, it’s the below-the-line comments.
She hasn’t reviewed the hotel waiter yet (she’ll be kind); but “in a Dublin hotel a few months ago, unable to sleep due to the sound of the four-hour, vigorous, live-action porn show on the other side of the cardboard door connecting [her] room with the one next door, [she] lay there plotting [her] TripAdvisor review”.
However, on some of these platforms, reviews go both ways. For example, not only do riders rate drivers on Uber, but, after every trip, drivers can rate riders as well. It is the same with the taxi app being used by Ross’s wife, Sorcha. She’s worried because she has an average “one-stor” customer rating from the drivers, out of five, which the lowest rating that it’s possible to get. This gets Ross worried too, not because he’s concerned for his wife, but
because her one-stor rating is almost certainly down to me, given that I’ve been using her account for the past six months and taxi drivers tend to bring out the worst side of my personality.
He tries to make light of it, but Sorcha is having none of it, revealing that she has already
… made a Data Access Subject Request. … All citizens have the right to access their personal data, Ross. I’m entitled to know why taxi drivers seem to think so little of me, especially given how much I tip.
As Sorcha leaves Ross to check whether the postman had delivered the hardcopy reply, their daughter-from-hell, Honor, arrives, having intercepted the post along the way. Together, they read all the horrible things Ross said to the taxi drivers over the previous six months; and they learn of some co-passengers Sorcha might not like to learn about; so Ross bribes Honor a thousand euros not to say anything to her mother. She agrees. And Ross relaxes, thinking he’s off scot-free. Then:
Sorcha steps back into the kitchen. “Nothing in the post,” she goes.
I’m there, “Like I said, you should just let it go, Babes.”
“No, it’s fine,” she goes, holding up her phone, “because they’ve emailed me the information anyway.”
Honor stands up from the table. She goes, “I’ll leave you to it, Dad. I still want that thousand euros, by the way.”
I wonder if anyone’s left a comment on Jennifer’s TripAdvisor review of the performance in the adjacent hotel room, or perhaps lodged a subject access request to find out more about it?
On Monday, 28 January 2019, 16.00-17.30, in Regent House (map), Trinity College Dublin, Jules Polonetsky (CEO, Future of Privacy Forum; pictured left) will give a public lecture on
Navigating Privacy in a Data Centric World
Almost every area of technical progress today is reliant on ever broader access to personal information. Companies, academic researchers, governments and philanthropists utilise ever more sensitive data about individuals movements, health, online browsing, home activity, social interactions. To collect the data, cars, drones, phones, wearables, TVs and faces are tracked. Sensors that see and hear collect new types of information and machine learning provides exponentially deeper analysis. Will European data protection reshape the leading data intensive technologies? With the backlash against tech company practices lead to regulation in the US and globally? What role for Ireland at the centre of the new generation of regulation and tech development? Can data be mined for the benefit of society without creating an Orwellian future?
Jules Polonetsky is CEO of the Future of Privacy Forum (PFP). It is a nonprofit organisation that serves as a catalyst for privacy leadership and scholarship, advancing principled data practices in support of emerging technologies. FPF brings together industry, academics, civil society and other thought leaders to explore the challenges posed by technological innovation and develops privacy protections, ethical norms and workable business practices. FPF is based in Washington DC, and is active in the US, Europe and Israel.
From the report embedded above (with added links):
Tech companies’ reign over users’ personal data has run largely unchecked in the age of the internet. Europe is seeking to end that with a new law
… the European Union enacted the world’s most ambitious internet privacy law [the General Data Protection Regulation (the GDPR)], even winning support from the CEO of the biggest tech company in America, Apple’s Tim Cook. …
Max Schrems: The default under the European system is you’re not allowed to use someone else’s data unless you have a justification. …
Jeffrey Chester: Americans have no control today about the information that’s collected about them every second of their lives. …
Today, if one of the big tech companies chooses to ignore Europe’s new data protection law it could cost them 4 percent of their global revenues, which for the biggest companies would mean billions of dollars. Those decisions will likely be made here in Dublin, … Ireland’s data protection commissioner Helen Dixon says it’s not going to be business as usual.
Helen Dixon: U.S. internet companies have no doubt that this law is serious, it has serious bite. And all of them are eager to avoid any engagement with that.
Dixon says tech companies are spending tens of millions of dollars hiring lawyers, compliance officers and engineers to make sure they are operating within the law. …
Steve Kroft: You think the big tech companies, the people in Silicon Valley are taking this seriously?
Eoin O’Dell: I think they have to.
Eoin O’Dell is a law professor at Trinity College in Dublin and a leading expert on European privacy law. He says Europe has now established an international standard for internet privacy, and companies like Facebook, Google and Amazon are not about to retreat from a $17 trillion market.
Eoin O’Dell: We have safety standards in cars, but that hasn’t stopped us driving cars. We have emissions standards for – for the gas in the cars but that hasn’t stopped us using the gas in the cars . The data companies are – going to comply in the same way as the – car companies have complied
Steve Kroft: To stay in business.
Eoin O’Dell: To stay in business.
Since the European privacy law was passed, at least ten other countries have adopted similar rules. So has the state of California. Perhaps sensing the inevitable, Facebook, Twitter, Google and Amazon are now saying they could support a U.S. privacy law if they were given considerable input. The Internet Association, which lobbies for big tech, and its president Michael Beckerman say they would support giving Americans reasonable access to their information and some privacy rights now enjoyed by the Europeans. …
Produced by Maria Gavrilovic. Associate producer, Alex Ortiz.
Christopher Palles (pictured above left) was an unrivalled master of the common law. He was Lord Chief Baron of the Exchequer in Ireland from 1874 until 1916. Professor VTH Delany described him as “the greatest of the Irish judges”.
Justice Russell Brown (pictured above right) has been a puisne justice of the Supreme Court of Canada since 2015. He was a Professor of Law at the University of Alberta before his appointment to the bench. He is the author of Pure Economic Loss in Canadian Negligence Law (LexisNexis Canada, 2011), as well as articles, chapters and essays on tort law, property law and civil justice.
Kevin Vickers was appointed as the Ambassador of Canada to Ireland in January 2015. He previously served as the Sergeant-at-Arms of the House of Commons.
Justice Brown’s lecture is presented by the Palles Society with the support of the Private Law Group (PLG) in the School of Law, Trinity College Dublin, the Events Fund of the Faculty of Arts, Humanities and Social Sciences (FAHSS), Trinity College Dublin, and the Ireland Canada Business Association (the ICBA). The Palles Society is very grateful to the PLG, the FAHSS, and the ICBA, for their generous support.
There was some chatter online yesterday about the fact that the UK Supreme Court sat for the first time with a 3-2 female-male majority. The Supreme Court of New Zealand had done so last year. Despite the complement of female justices over the last 20 years, the Supreme Court of Canada doesn’t seem to have had a female majority panel yet. And there haven’t been sufficient female justices on the High Court of Australia for it to have happened there. Against that backdrop, I thought I’d find out if and when the Irish Supreme Court had first sat with female majority panels, and this is what I found.
The first majority female panel in the Irish Supreme Court happened more than EIGHTEEN years ago. Denham J was the first woman appointed to the Supreme Court, in 1992; McGuinness J was the second, in January 2000; and a female 2-1 majority on a 3-judge panel of the Supreme Court happened almost immediately after that appointment, in February 2000. In Dalton v Governor of the Training Unit IESC 49 (29 February 2000) Denham and McGuinness JJ sat with Hardiman J (the image, above left, is of McGuinness J (left) and Denham J (right)).
Macken J (pictured right) was the third woman appointed to the Supreme Court, in May 2005; and a female 3-2 majority on a 5-judge panel of the Supreme happened soon after that appointment, in November 2005. In DPP v Gilligan IESC 78 (23 November 2005) Denham, McGuinness and Macken JJ sat with Geoghegan and Fennelly JJ.
There does not seem to have been a 3-judge panel on which all three of Denham, McGuinness and Macken JJ sat before McGuinness J retired at the end of 2005.
Denham J became Chief Justice in 2011 (and retired in 2017). The next women appointed were Laffoy J (2013–2017) and Dunne J (2013-present), appointed on the same day (pictured left are Laffoy J (left) and Dunne J (right) on the occasion of their appointment to the Supreme Court by President Higgins (centre)). The first all-female 3-judge panel is Cagney v Bank of Ireland IESC 80 (22 October 2015) on which Denham CJ, Laffoy and Dunne JJ sat.
The next women appointed were O’Malley J (2015-present; pictured right), and Finlay Geoghegan J (2017-present). The first female 4-3 majority on a 7-judge panel was Murray v Budds IESC 4 (02 February 2017) where Denham CJ, Laffoy, Dunne and O’Malley JJ sat with O’Donnell, McKechnie and MacMenamin JJ.
Incidentally, given that some of the recent coverage of the UK Supreme Court centred on the fact that Lady Arden succeeded her husband Lord Mance on the Supreme Court bench, it should be noted that Ireland got here first too, with Finlay Geoghegan J (pictured left) being appointed to the Supreme Court some time after her husband, Hugh Geoghegan, retired from that court.
People ask me sometimes, ‘When do you think it will be enough? When will there be enough women on the court?’ And my answer is: when there are nine.
By that standard, the Irish Supreme Court has a way to go for an all-female bench of 5 or 7, or for every judge to be female. But it is far ahead of many of its counterparts elsewhere in the common law world. And it has done so quietly, without any of the fanfare that accompanied yesterday’s hearing in the UK Supreme Court.