Category: Copyright

I have written several times on this blog about the importance of digital deposit (here, here, here, here). Section 198 of the Copyright and Related Rights (also here) provides for the delivery of print publications by publishers to libraries specified in the Act. Under this copyright deposit or legal deposit obligation, several libraries are entitled to copies of books published in the State. However, in Ireland this obligation applies only to print publications. In many jurisdictions, this obligation has been extended to cover electronic publications and websites. With the rise of digital publishing, it is increasingly being recognised that print deposit is incomplete, and that a comprehensive preservation of a nation’s published heritage requires that copyright deposit should extend to online publications as well. Moreover, online material is disappearing at frightening pace. Hence, the Copyright Review Committee, in the Modernising Copyright Report, recommended adding a new section in the 2000 Act to extend the existing copyright deposit regime for print publication in section 198 to digital works, and to permit copyright deposit institutions to harvest the .ie domain.

After much to-ing and fro-ing charted in the earlier blogposts, section 27 of the Copyright and Other Intellectual Property Law Provisions Bill 2018 (as initiated; pdf), in a much less comprehensive provision than that recommended by the CRC, provided for a limited form of digital deposit. It extended the copyright deposit regime to ebooks, but did not provide for the harvesting of the .ie domain. Section 27 remained unamended in the version of the Bill (pdf) that passed the Dáil. But an amendment put forward by Fianna Fáil, and accepted by the government, added a new section 106

Within twelve months of the enactment of this Bill the Government shall bring forward a report on the feasibility of establishing a digital legal deposit scheme to serve as a web archive for .ie domain contents and advise on steps taken towards that goal.

This was progress, even if it amounted to making haste slowly. The Bill went to the Seanad, where Committee stage was taken today. Senator Fintan Warfield argued that a feasibility study was too little, too late, and that the Bill should be amended to provide for the harvesting of the .ie domain. He proposed a short amendment designed to do just that. It is amendment 2 here (pdf). The Minister who had carriage of the Bill during the debate (the Minister of State for Training, Skills, Innovation, Research and Development, John Halligan TD) declined to accept it on the grounds that there were issues with other government departments and public institutions, and that it would have significant resource implications. Nevertheless, Senator Warfield pressed it to a vote. On the electronic vote, there was a tie – Tá (yes) 18; Níl (no) 18 – and the amendment was defeated on the casting vote of the Leas Cathaoirleach (Deputy Speaker). So Senator Warfield called for a walk-through vote, and the amendment was carreed – Tá (yes) 19; Níl (no) 17.

This is excellent news as a matter of principle. It is an important step in making Irish copyright law fit for the digital age. It will also come as a relief to the National Library of Ireland. The image at the top of this post comes from the following tweet:

Behold! The Irish web! Arrived safe and sound from our friends @internetarchive. It will be winging it's way to our reading room very soon! #staytuned #webarchiving #digipres pic.twitter.com/cdlqaBxjOO

— Nat Library Ireland (@NLIreland) April 4, 2018

In other words, the National Library have already harvested the .ie domain. Good for them, notwithstanding that this is a wholesale infringement of copyright. And if and when the Bill becomes law with Senator Warfield’s amendment, and if they do it again thereafter, it won’t be a copyright infringement then!

As 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.

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Have you ever transferred music from one device to another? Have you copied music from a CD to your phone to listen to it on the way to work? Have you copied a DVD to a tablet to watch it on a long journey? If so, you have probably infringed copyright, almost certainly without realizing it.

Have you every backed-up the data on your phone, or your laptop? Of course, most of us don’t back-up as often as we should; but, if you do, then you have probably infringed copyright, again almost certainly without realizing it.

Moving data from one format or device to another is known as format-shifting, and both it and backing-up mean that you are making copies of the relevant content or data. Making those copies is an infringement of copyright, unless you have the permission of the copyright owner (which usually you won’t have), or you can rely on a copyright exception provided by copyright legislation (which right now, in Ireland, you can’t).

There is no good reason why format-shifting or backing-up should be an infringement of copyright. And there are many good reasons why it should not. In particular, the fact that you didn’t realize that format-shifting or backing-up are infringements of copyright demonstrates that consumers assume that format-shifting and backing-up are perfectly normal behaviour. These are ubiquitous practices in the digital age, and copyright law should not frustrate such legitimate consumer assumptions.

These exceptions are permitted by the EU’s 2001 Copyright Directive, and they have long formed part of the law in most European countries. Many common law countries have looked at this issue in the recent past, and have concluded that they too should introduce these exceptions. A Bill currently before the Seanad is a golden opportunity for Irish law to do likewise.

Exceptions to copyright are often described as fair dealing, and the Bill ought to be be amended to provide explicitly that format-shifting and backing-up should be regarded as fair dealing too.

However, considerations of fairness require that copyright owners should be compensated for any harm done to them by this fair dealing. In other countries where such exceptions exist, copyright owners receive such fair compensation from levies upon the manufacturers and importers of the blank recording media to which the data is transferred. In this way, a fair balance between the rights of consumers and copyright owners is achieved. Hence, the Bill ought also to be amended to provide such a scheme.

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In the early days of this blog, I wrote three posts on whether there is a criminal or civil legal liability for using other people’s wifi without permission.

I was reminded of these posts yesterday, when Edmund Heaphy (a student in Trinity, and a journalist at Quartz) contacted me about the following story:

The unique legal concept that led to Germany’s weird wifi laws

Germany is about to get a lot more free wifi. One of the country’s highest courts has upheld a 2017 law designed to put an end to the effect of a peculiar legal concept known as Störerhaftung as it applies to public wifi networks. …

Whilst the decision of the Bundesgerichtshof (Federal Court of Justice) is very welcome, German lawyers have told the World Intellectual Property Review that more clarity is needed. As Mateusz Rachubka points out o the 1709 Blog, the 2017 legislation is a result of the decision of the CJEU in Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH, which held that the eCommerce Directive (Directive 2000/31/EC; OJ 2000 L 178, p. 1) precluded a rights-owner seeking damages from an access provider whose open network was used by a third party to upload or download material that infringed copyright, but did not preclude the rights-owner seeking an injunction requiring the access provider to terminate or prevent a copyright infringement.

In today’s Irish Times, Mark Paul reports that “three global music labels are limbering up to seek a High Court order against Sky Ireland to force it to implement a ‘three strikes and you’re out’ policy against its broadband customers who download music from pirate sites”. In Sony Music Entertainment Ireland Ltd v UPC Communications Ireland Ltd [2016] IECA 231 (28 July 2016) [hereafter: Sony v UPC] the Court of Appeal held that the courts could indeed make just such an order, and that the costs of implementing it were to be borne 80% by the internet service provider, and 20% by the copyright rights-owner (subject to a cap). No doubt, the three labels involved in the action reported in the Irish Times – Sony Music Entertainment, Warner Music and Universal Music – will rely on this case in their action. However, since it was decided, the UK Supreme Court has handed down its decision in Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259, [2018] UKSC 28 (13 June 2018) [hereafter: Cartier v BT], and it stands in stark contrast with Sony v UPC. The structure of both cases is exactly the same: a holder of intellectual property rights seeks an injunction against an online intermediary to prevent infringement of the rights-holder’s rights on the intermediary’s platform, and the intermediary seeks an order that the rights-holder should bear (some at least of the) costs of implementing the injunction. However, the resolution of the issues in both cases differs quite substantially: the UK Supreme Court in Cartier v BT granted the injunction on a basis rejected by the Irish courts, and it imposed the costs of its implementation entirely on the rights-holder seeking it. The application reported today provides an appropriate context in which to consider these issues. The basis of the injunctions in Sony v UPC and Cartier v BT will be discussed in this post, and the differing costs orders will be discussed in a subsequent one.

In Sony v UPC, the Court of Appeal upheld an order made by Cregan J in the High Court [Sony v UPC (No 1) [2015] IEHC 317 (27 March 2015)] requiring an internet service provider to implement a graduated response system against customers who infringe copyright. The system is graduated, because the responses range from initial warning letters to applications for to court for disconnection of the infringing customers. And the order was made on foot of section 40(5A) of the Copyright and Related Rights Act 2000 (also here) [hereafter: CRRA]. The case is the most recent reported stage of litigation between copyright rights-owners (such as music and movie companies) and internet service providers that has been ongoing since 2005. (more…)

Today is World Intellectual Property Day. On a day to celebrate the role that intellectual property rights play in encouraging innovation and creativity, we should take care that IP law does not achieve the opposite result. I blogged yesterday about the press publishers’ right in Article 11 of the proposal for a Directive on Copyright in the Digital Single Market. Today, I’m staying with the proposed Directive, and with another open letter (pdf, via here) that I’ve signed articulating some of its shortcomings. In this letter, academics from 25 leading Intellectual Property research centres in Europe express grave concerns at the legislative direction of the proposed copyright Directive, and in particular with Articles 3, 11 and 13:

• the proposed exception for text-and-data-mining in Article 3 will not achieve its goal to stimulate innovation and research if restricted to certain organisations,
• the proposals for a new publishers’ right under Article 11 will favour incumbent press publishing interests rather than innovative quality journalism [I blogged about this yesterday], and
• the proposals for Article 13 threaten the user participation benefits of the e-Commerce Directive (2000/31/EC) which shared the responsibility for enforcement between rightholders and service providers [I blogged about this at an earlier stage in the process].

Today is also Poetry Day Ireland; but poetry the proposed Directive certainly is not. But you govern in prose; and the prose of the proposed Directive could be improved by revisting Article 3, 11 and 13.

In a statement published this morning, 169 academics working in a variety of fields from all over Europe give a final warning against the EU Commission’s ill-conceived plans for the introduction of a new intellectual property right in news.

Here are some extracts from the statement:

Statement from EU Academics on Proposed Press Publishers’ Right

We, the undersigned 169 scholars working in the fields of intellectual property, internet law, human rights law and journalism studies at universities all over Europe write to oppose the proposed press publishers’ right.

Article 11 of the proposal for a Directive on Copyright in the Digital Single Market, as it currently stands following negotiations in the EU Council and Parliament, is a bad piece of legislation. … The proposal would likely impede the free flow of information that is of vital importance to democracy. This is because it would create very broad rights of ownership in news and other information. … This proliferation of different rights for established players would make it more expensive for other people to use news content. … The proposed right would provide no protection against ‘fake news’. … There is no sound economic case for the introduction of such a right.

The academic community is virtually unanimous in its opposition to the European Commission’s proposal for a press publishers right. … it is important to understand that press publishers already have very significant rights in their publications. … [Moreover], Rapporteur Voss’s proposed amendments will make matters even worse. …

Conclusion
We call on all MEPs to oppose the Commission proposal, and with yet more determination, Mr Voss’s amendments. It is time to reject, once and for all, this misguided legislative reform.

My colleague, Giuseppe Mazziotti, and I are among the signatories. Read the full statement here (pdf) or here (html). It joins an open letter earlier this month from 56 organisations encouraging the deletion of Article 11.

The description for this picture provides:

I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.

This picture is worth many thousand of my words:

• Copyright reform and digital deposit;
• Legal deposit of digital publications; and
• The copyright implications of a publicly curated online archive of Oireachtas debates.