Columba’s 1,500th birthday is a good day to note that Ireland has implemented the DSM Directive, (almost) the whole DSM Directive, and nothing but the DSM Directive

St Columba and Copyright (cropped and modified Flickr image)Happy birthday, St Columba
Today is the birthday, 1,500 years ago, in 521, of a celtic saint variously called Columba or Colmcille (pictured left). He founded many monasteries, including those in Kells, Ireland, and Iona, Scotland, where the Book of Kells was written. A tale about him forms an important part of Irish copyright lore. It is, therefore, an auspicious day on which to note that there has recently been an important development in Irish copyright law: the EU’s DSM Directive has recently been implemented into Irish law (see the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 (SI No 567 of 2021) (SI 567) implementing Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance) (OJ L 130, 17.5.2019, p. 92–125) (DSM)).

In the foreword to her magisterial Copyright in the Digital Single Market. Article-by-Article Commentary to the Provisions of Directive 2019/790 (OUP, 2021) Eleonora Rosati points out that this year is the 30th anniversary of the first harmonizing Directive in the broad copyright field and (Software Directive) and the 20th anniversary of the most significant Directive in that field (InfoSoc Directive). And it is the year in which the DSM Directive is to be implemented. Communia have a really helpful tracker of the various member state implementations of the Directive, and they will be analysed in detail in a forthcoming special issue of the Journal of Intellectual Property Law and Practice. The Irish implementation is the Directive, (almost) the whole Directive, and nothing but the Directive.

The DSM Directive
The InfoSoc Directive was implemented in Irish law as part of a comprehensive revision of Irish copyright law in the Copyright and Related Rights Act, 2000 (also here), most recently amended by the Copyright and Other Intellectual Property Law Provisions Act 2019 (also here). SI 567 implementing the DSM Directive makes further amendments to these Acts. The Directive is intended to contribute to the functioning of the EU’s internal market, to provide for a high level of protection for rightholders, to streamline the clearance of rights, and to create a level playing field on which the exploitation of protected content matter can take place. Most countries missed the 7 June 2021 deadline for the implementation of the Directive, so the Irish implementation on 19 November 2021 doesn’t seem all that tardy. According to Communia’s excellent tracker, Netherlands, Hungary, Germany, Malta and Croatia have implemented the Directive by primary legislation; France and Italy have done so by secondary legislation; and Denmark has achieved a partial implementation. Indeed, far from being tardy, this puts the Irish implementation comfortably in first half of member state transpositions. SI 567 was adopted after a series of public consultations. It provides a framework for a more modern copyright legislation which reflects in particular technological advances and increased digitisation. On publication of SI 567, the Department of Enterprise, Trade and Employment said that it

will strengthen the rights and protections afforded to various categories of copyright holders, including journalists and authors, when their work is shared online. It will also provide for wider access and use of copyright protected works for the benefit of a broad range of stakeholders, including the creative sectors, press publishers, researchers, educators, cultural heritage institutions, and citizens.

Articles 3 and 4 DSM provide for a mandatory exception for text and data mining for the purposes of scientific research; and Regulations 3 and 4 of SI 567 implement it – in particular, Regulation 3 integrates this exception with that provided in sections 53A and 225A of the 2000 Act, as inserted by section 14 of the 2019 Act (also here). Article 5 DSM provides for a mandatory exception for digital and cross-border teaching; and Regulation 5 of SI 567 implements it – in particular by integrating in into the exception provided in sections 57A and 225C of the 2000 Act, as inserted by sections 15 (also here) and 31 (also here) of the 2019 Act.

Article 8 DSM provides for the use of out-of-commerce works by cultural heritage institutions; Regulation 8 of SI 567 implements it, by providing that such institutions may use such works under licenses with collective management organisations; and Regulation 9 makes provision for circumstances where no appropriate collective management organisation exists. At least three aspects of the implementation deserve comment. First, Article 11 DSM requires Member States to consult rightholders, collective management organisations, and cultural heritage institutions, and other relevant stakeholders, before implementation. This was achieved by means of the consultation process already referred to. However, Article 11 also requires ongoing dialogue relating to the relevance and usability of the licensing mechanisms and to ensure that the safeguards for rightholders are effective. This is exactly the kind of job that could have been done by the Copyright Council recommended by the CRC in Modernising Copyright but ignored in its implementation by the 2019 Act. Second, Article 10 DSM requires publicity measures to be taken relating to the use of out-of-commerce works by cultural heritage institutions, and Regulation 11 of SI 567 provides that they will be provided through a website maintained by the Minister or the Government; but this would easily have fallen with the public education remit of the proposed Copyright Council, which would have been able to be far more comprehensive in this context than a government website. Third, Regulation 7 of SI 567 amends section 2 of the 2000 Act to provide that “‘cultural heritage institution’ has the meaning assigned to it” in SI 567; I’m sure there must be a good drafting reason for this circularity, but I can’t fathom why the definition added to section 2 of the 2000 Act was not the actual definition itself; worse, so far as I can see, there is no such definition in SI 567 – although such institutions are referred to throughout the SI, they are not actually defined anywhere in it. I wondered whether the reference to SI 567 in section 2 of the 2000 Act might be a typographical error for another SI that had already defined the term; but, if so, I can’t find it. I would be happy to be wrong on this; so, if someone can point me to what I’m missing, I’d be very grateful.

Article 13 DSM provides for a negotiation mechanism for parties facing difficulties related to the licensing of rights, and Regulation 12 of SI 567 implements this by providing that such parties may engage in mediation within the meaning of the Mediation Act 2017 (also here). This, too, would have an obvious function for the Copyright Council, had it been established in the 2019 Act.

Article 15 DSM provides for a controversial right protecting press publications; and Regulation 13 of SI 567 implements it. Regulation 13(8) provides that “disputes under this Regulation may be submitted to a mediator in accordance with the Mediation Act 2017”. Had the Copyright Council been established, its proposed Alternative Dispute Resolution Service would have been able to fulfill that function as well. Having regard to Article 24 DSM, Regulation 16 of SI 567 provides that there is an exception from Regulation 13 for “for the sole purpose of illustration for teaching”. Given that Regulation 5 integrates the Directive’s provisions on digital and cross-border teaching into statutory provisions providing for education more broadly, it is a pity that Regulation 16 is so narrowly cast.

Articles 28 to 23 DSM provide for fair remuneration for authors and performers; and Regulations 25 to 29 of SI 567 implement them. For example, Regulation 28 provides that an author or a performer may claim “additional, appropriate and fair remuneration” from the party with whom he or she entered into a contract “when the remuneration originally agreed turns out to be disproportionately low”. Compared with attempts to argue that the original contracts were invalid for reasons of undue influence or the like, this at least has the merit of honesty.

Finally, at various places throughout SI 567, it is provided that contractual provision contrary to the rights provided by the Directive and the statutory instrument “shall be unenforceable” (eg, the provisions inserted into the 2000 Act by Regulations 3, 4, 5, and 6 (having regard to Article 7 DSM); and Regulation 31 (having regard to Article 23 DSM)). This might have been unnecessary, having regard to section 2(10) of the 2000 Act, which provides that where “an act which would otherwise infringe any of the rights conferred by this Act is permitted under this Act it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act”. If that was thought inadequate, then the CRC recommendation to simplify section 2(10), (to provide that any unfair term in a contract which purports to restrict an exception permitted by the Act should be void), should have been followed.

(Almost) the whole DSM Directive
SI 567 implements almost, but not quite, the whole Directive. As to the “almost”, there are three elements of the Directive which are not implemented in the Regulations. First, Article 12 DSM provides that Member States may provide for extended collective licensing. Second, Article 16 DSM provides that Member States may provide for claims to “fair compensation” for publishers in certain circumstances. Taking advantage of the discretion in the emphasised may, neither case is implemented in SI 567.

Third, Article 14 DSM provides that Member States “shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation”. There is no implementing provision in SI 567, perhaps because this is a statement of general principle that flows from sections 17(2)(a) (also here) and 24(1) (also here) of the 2000 Act, relating respectively to original artistic works and the expiry of copyright in artistic works. Recital 53 explains the reasons for Article 14:

… In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. …

It may be that general principles of Irish law make the point, but its absence from the Regulations contributes to the uncertainty that Article 14 is designed to avoid. It would have been better if, for the avoidance of doubt, that Article had been implemented in the Regulations.

As to the “whole Directive”, the Regulations give full effect to the extremely controversial Article 17 DSM (see, generally, the EU Commission’s Guidance on Article 17 (COM(2021) 288 final)). Article 17(1) regulates the use of copyright works by users on internet platforms, such that the platforms must obtain obtain an authorisation from the holders of rights in those works, for instance by concluding a licensing agreement; and this is implemented by Regulation 19(1)-(2) of SI 567. The remainder of Article 17 hedges this quite substantially; and it is implemented by the remainder of Regulation 19 and by Regulations 20-14. The Copyright Council, had it been established, could have had important roles to play in the effective and expeditious complaint and redress mechanism provided by Article 17(9) DSM and Regulation 23 of SI 567, and in the out-of-court dispute settlement provided by Regulation 24.

The opinion of the Advocate General and the decision of the Court of Justice in Joined cases C-682/18 and C-683/18 YouTube and Cyando, on the balancing of fundamental rights at play in copyright cases, especially in the hosting context to which Article 17 DSM is directed, and the ongoing challenge in Case C-401/19 Poland v Parliament and Council to the compatibility of Article 17 DSM with the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union, might have given pause to the implementation of Article 17 DSM in SI 567. On the other hand, those concerns might be met by the exceptions in Regulation 21 which are said to be directed to the “protection of freedom of expression”. Nevertheless, pending the resolution of Case C-401/19 Poland v Parliament and Council, it might have been prudent either to delay the adoption of SI 567 or at least to postpone to a subsequent Statutory Instrument the provisions relating to Article 17.

Nothing but the DSM Directive
If the transposition had happened by primary rather than secondary legislation, then the opportunity could have been taken to make other changes to the 2000 and 2019 Acts. For example, given the many roles mentioned above that could have been played by the Copyright Council under the Directive, it is a very great pity that the legislative route was not taken, as this would have allowed the establishment of the Council. In previous posts on this blog, I have mentioned some of the other existing gaps that legislation might have filled. The 2019 Act implemented many, but not all, of the recommendations of the Copyright Review Committee (CRC) report Modernising Copyright. For example, CRC recommended the introduction of the full range of exceptions permitted by EU law (in particular, by the InfoSoc Directive), but the 2019 Act did not do so, ensuring that Ireland contributes to the ongoing fragmentation of copyright law. For example, amendment is necessary to ensure that format-shifting and backing-up do not infringe copyright. The law relating to public lectures in (and, online, by) libraries, archives, museums, galleries, and educational establishments, is in an entirely unnecessary mess. The law relating to online instruction is unnecessarily limited. The same is true for the law restricting digital deposit. And the issue of fair use or reasonable dealing might have been revisited.

None of this was done. The last, best moment to implement comprehensive and necessary reform of Irish copyright law has passed. But all may not yet be lost. If I am right that there is no definition of “cultural heritage institutions” in SI 567, then there will have to be an amending SI. And the opportunity may be taken in that amending SI to address some of the issues in the previous paragraph, especially those which relate to the subject-matter of SI 567, such as the law relating to online instruction (where the implementation of Article 5 DSM by Regulation 5 of SI 567 does not address the existing problems with section 57 of the 2000 Act as inserted by section 15 of the 2019 Act) and to public lectures in (and, online, by) cultural heritage institutions (where the implementation of Article 8 DM by Regulations 8 and 9 of SI 567 does not address the existing problems with 69A(2) of the 2000 Act, as inserted by section 19 of the 2019 Act, and with SI No 427 of 2000). I’m going to cross my fingers and wait and see if anything happens here, but I’m not going to hold my breath.