How to amend the Copyright Bill so that format-shifting and backing-up do not infringe copyright

Devices and media, via PixabayAs I explained in my previous post, as the law currently stands, format-shifting and backing-up can infringe copyright. But there is no good reason why this must be so. And the Copyright and Other Intellectual Property Law Provisions Bill 2018 currently pending before the Seanad provides a golden opportunity to put things right.

The main legislation relating to copyright at Irish law is the Copyright and Related Rights Act, 2000 (also here). It is the Principal Act for the purposes of the Copyright and Other Intellectual Property Law Provisions Bill 2018. The aim of that Bill, as described in its long title is to amend the Principal Act

… to take account of certain recommendations for amendments to that Act contained in the Report of the Copyright Review Committee entitled “Modernising Copyright” published by that Committee in October 2013 and also to take account of certain exceptions to copyright permitted by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 20011 on the harmonisation of certain aspects of copyright and related rights in the information society; …

Senators David Norris, Victor Boyhan, Fintan Warfield, Ivana Bacik, Kevin Humphreys, Ged Nash, and Aodhán Ó Ríordáin have proposed amendments to the Bill to permit format-shifting and backing-up. And these amendments are entirely consistent with the aims of the Bill: they propose amendments to the Principal Act to implement other recommendations in the “Modernising Copyright” Report and other exceptions permitted by the Directive. Those recommendations and exceptions relate to making copies for private use, such as format-shifting and making back-ups. The main argument in favour of such private copying exceptions is that they reflect consumers’ reasonable assumptions, basic expectations, and widespread practices. The Copyright Review Committee said as much in its “Modernising Copyright” Report. The Committee was established on 9 May 2011 by the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton (TD). After an extensive consultation process, the Committee’s Report, dated 1 October 2013, was published by the Minister on 29 October 2013. The Report contained a comprehensive draft Bill to implement its recommendations, and it was widely welcomed. Many provisions of the current Bill are based upon provisions of the Bill in the Committee’s Report. In particular, the Directive permits national law to introduce what it calls limitations and exceptions to enable user rights. Some of those are included in the Principal Act; and many more are now included in the Bill. Those included in the Bill relate to matters such as education, libraries and archives, parody, text and data mining, and persons with a disability. All of these proposals are very welcome. However, private copying exceptions for format-shifting and backing-up, where are permitted by the Directive and which were proposed by the Committee, are not included in the Bill; and their omission is very unwelcome indeed.

Consumers now commonly assume and expect that, if they buy content for personal (as opposed to commercial) use, they should be able to access it in various formats and across multiple devices, and they should be able to back it up. As a consequence, many users routinely copy their content from one device to another, and make back-ups of their data, and they do not believe that this is or should be against the law. Nevertheless, at present, it is an infringement of copyright to shift formats or make back-ups. But these practices are now well-established as consumers’ reasonable assumptions, basic expectations, and widespread practices; and copyright law should not put unnecessary obstacles in their way. Failure to acknowledge this reality diminishes respect for the system of copyright and undermines the credibility of copyright legislation. On the other hand, recognizing the ubiquity and validity of consumers’ common and reasonable assumptions, accommodating basic and genuine consumer expectations, and enabling widespread and normal consumer practices, will make copyright law defensible, rational, stable and sustainable.

The Directive, to say nothing of considerations of fairness, requires that copyright owners are compensated for any harm done to them by the use made of their works pursuant to such private copying exceptions. In other countries, copyright owners receive such fair compensation from levies upon the manufacturers and importers of the blank recording media on which private copies are made. In this way, a fair balance between the rights of copyright owners and the rights of users is achieved.

For all of these reasons, the amendments proposed here provide such private copying exceptions to enable format-shifting and backing-up, subject to a system of levies for fair compensation. The proposed amendments rely upon, and build upon, recommendations in the Committee’s Report and provisions of the Bill in that Report. And they supplement these recommendations and provisions by reference to similar amendments and practices in other common law countries, such as Australia, Canada, New Zealand and the United Kingdom.

The proposed amendments insert a new Chapter 5 into the Bill, to provide miscellaneous amendments of the Principal Act in relation to user rights. This new Chapter consists of three sections. The first new section, on fair dealing, introduces or amends various user rights to enable format-shifting and backing-up. The second new introduces a right to fair compensation to compensate rightsowners for the exercise of some of those user rights. And the third new section provides for the registration of collecting societies, to collect and disburse the fair compensation provided for in the earlier sections.

These private copying provisions are permitted by Article 5(2)(b) of the Directive, on condition that rightsowners receive fair compensation, which is explicitly provided for in these amendments. To enable format-shifting, the amendments introduce new sections 106A and 254A into the Principal Act. To enable backing-up, the amendments also introduce new sections 106B and 254B into the Principal Act. These provisions are modelled on provisions proposed by the Copyright Review Committee, which in turn were influenced by the language in the Directive and by provisions in other common law jurisdictions with similar copyright legislation.

It should be noted at this point that sections 101 and 250 of the Principal Act (as amplified in the Copyright and Related Rights (Recording For Purposes of Time-Shifting) Order, 2000 (SI No 407 of 2000)) already provide for time-shifting, the recording of a broadcast to be viewed or listened to at another time or place; and format-shifting as provided above is a logical corollary.

The rights to format-shift or back-up proposed in the new sections 106A, 106B, 254A and 254B of the Principal Act can be exercised by “the owner or lawful user” of a work, so the amendments insert definitions of “lawful user” into sections 49 and 220 of the Principal Act. And those rights are expressed to be aspects of “fair dealing” in section 50(1) and 221(1) of the Principal Act. Fair dealing is the bedrock of user rights provided by the Principal Act. It is defined in sections 50(4) and 221(3), which provide that “ ‘fair dealing’ means …” the making use of a copyright work, or a recording of a performance, “… which has already been lawfully made available to the public, for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright”. (A similar definition appears in section 329, providing for fair dealing in relation to databases). This definition is a very important innovation in the Principal Act. It reflects international conditions for limitations and exceptions in the Berne Convention for the Protection of Literary and Artistic Works, in the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and in various EU Directives.

However, this definition has had the unintended consequence of cutting Irish law off from developments in fair dealing in other common law countries with similar copyright legislation, in all of which there have been important decisions explaining fair dealing provisions which Irish law should be able to adopt. A simple way to achieve this is to replace “ ‘fair dealing’ means …” with “ ‘fair dealing’ includes …”. This solution, proposed by the Committee, has the very great merit of combining the best of both worlds: it keeps the definition in the Principal Act; but it also reconnects Irish law with its common law counterparts. Judgments in those jurisdictions are highly persuasive, and the clarity they would bring would tend to reduce litigation in Ireland. Hence, the amendments would amend the definitions in sections 50(4), 221(3) and 329 of the Principal Act. This very small amendment would allow Irish law to reconnect with mainstream common law developments relating to fair dealing; and it would provide a solid basis for the user rights proposed in section 45.

The Committee made several recommendations about user rights, two of which – relating to format-shifting and backing-up – are proposed here. Since the publication of the Committee’s Report in 2013, judgments of the Court of Justice of the European Union in Luxembourg and of the High Court in London have confirmed that EU law provides that private copying exceptions require fair compensation in the form of levies. Hence, the amendments go further than the Committee by adding a balanced and workable scheme of private copying levies for fair compensation. It may be that the Luxembourg and London judgments are the reason why the private copying exceptions recommended by the Committee are not mentioned in the Bill. Nevertheless, the scheme provided for in the amendments demonstrates that the requirement private copying levies for fair compensation is easily accomplished.

The second new section provides for fair compensation. It introduces new sections 106C and 254C into the Principal Act, providing that rightsowners are entitled to receive fair compensation to compensate them fairly for harm done to them by the use made of their works pursuant to sections 106A, 106B, 254A and 254B of the Principal Act. These new sections are modelled on the provisions relating to equitable remuneration in sections 125-126, 208 and 298-299 of the Principal Act. This section also introduces new sections 106D and 254D into the Principal Act, providing for levies on blank recording media to fund the right to fair compensation. These new provisions are modelled on Canadian and Australian legislation and practice relating to blank recording media subject to levies.

The third new section provides for collecting societies to collect and disburse the fair compensation provided in the previous section. The provisions in section 47 are modelled on the provisions relating to licensing bodies and collecting societies in sections 175-181 and 280-286 of the Principal Act. In particular, by analogy with sections 175, 176, 181, 280, 281 and 286 of the Principal Act, sections 181A, 181B, 181G, 286A, 286B and 286G are inserted into the Principal Act by the amendments proposed here, to provide for a register of copyright collecting societies and of collecting societies for performers’ property rights. By analogy with sections 177 and 282 of the Principal Act, sections 181C and 286C are inserted into the Principal Act, to provide for notification of levies to the Controller of Intellectual Property (as described in section 40 of the Bill). And, by analogy with sections 178, 179, 180, 283, 284 and 285 of the Principal Act, sections 181D, 181E, 181F, 286D, 286E and 286F are inserted into the Principal Act, to provide for various matters relating to the Controller.

There was a great deal of support in the submissions to the Copyright Review Committee for private copying exceptions. Indeed, even rightsowners by and large argued that if any such exceptions are introduced on foot of the Directive, they should be subject to private copying levies. That is precisely what is provided for in these amendments.

The proposed amendments would also resolve an ambiguity in provisions of the existing Bill relating to user rights. Section 18 of the Bill inserts a new section 69A into the Principal Act, and subsection (2) of that new section provides for public lectures given in prescribed libraries or archives “the sole purpose of education, teaching, research or private study”. It is clear that educational establishments are implied in that purpose, and so that ought to be made explicit by adding educational establishments to the libraries and archives listed. Various amendments are put down to achieve this end.

Finally, section 7 of the Principal Act provides that the Minister may make regulations to enable the Act to have full effect; and section 363 of the Principal Act provides that the Minister may make rules in relation to proceedings before the Controller. On the basis of such powers, the Minister will have to make rules relating to the Register of Copyright Collecting Societies (probably by analogy with the Copyright and Related Rights (Register of Copyright Licensing Bodies) Regulations, 2002 (SI No 463 of 2002)). The Minister will also have to make rules relating to the Register of Collecting Societies for Performers’ Property Rights (probably by analogy with the Copyright and Related Rights (Register of Licensing Bodies for Performers Property Rights) Regulations 2008 (SI No 306 of 2008)). And the Copyright and Related Rights (Proceedings Before the Controller) Rules 2009 (SI No 20 of 2009) will certainly have to be amended to cover proceedings before the Controller by these collecting societies. Given that this secondary legislation will be necessary to give effect to the proposed amendments, the Minister should, pursuant to section 1(6) of the Bill, delay the coming into force of the new sections proposed in these Amendments until the relevant secondary legislation has been enacted. This will provide a transition period for the introduction of the new user rights and their concomitant scheme of private copying levies.

This is a balanced scheme of private copying exceptions and fair compensation levies (I contributed to the drafting of these amendments, so I would say that, wouldn’t I?). If it is adopted, Irish law will reflect basic user expectations, and our copyright law will be that bit better adapted for the digital age.