Category: Copyright

About this time last year, the Government lost some votes on important issues as the Bill that became the Data Protection Act 2018 (also here) was at Committee Stage in the Dáil. Writing on this blog, I described this as an example of new politics making for interesting times. Rather magnanimously, they did not seek to reverse these defeats; at the last stage of the Bill, the Minister confirmed that it was “not [his] intention to revisit the putting of the amendment in any other form”. In the intervening year, much has changed – for one thing, we are a year closer to a general election, commentators forecast that the next budget in October will be this Government’s last, and there is speculation that the Taoiseach may even call a snap election earlier than that. All of this means that the detente of new politics is breaking down. There can be no surer sign of this than that the Government is no longer magnanimously prepared to accept parliamentary defeats, and will reverse them if it can. There was a shameful example of this arrogance earlier this week in the Seanad, during the Report Stage debate on the Copyright and Other Intellectual Property Law Provisions Bill 2018.

At Committee Stage, the Seanad approved an amendment put down by Senator Fintan Warfield (Sinn Féin) and opposed by the Government that would have ensured that that the archiving of the .ie domain would not infringe copyright. Writing on this blog, I welcomed this outcome as excellent news as a matter of principle, and an important step in making Irish copyright law fit for the digital age. However, at Report State, in an unseemly fit of pique, 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) unapologetically restated his objections that there were issues with other government departments and public institutions, and that it would have significant resource implications, and he put down an amendment to reverse Senator Warfield’s earlier successful amendment (see amendment no 7 here). In the event, Senator Warfield acquiesced in the Minister’s amendment with a heavy heart, and it was accepted by the Seanad without a vote. All that remains is a commitment to bring forward proposals within a year.

Meanwhile, Ireland will – entirely unnecessarily – lag far behind the US and the UK. For example, in the US, the Internet Archive (the digital equivalent of the ancient library of Alexandria) is building a digital library of Internet sites and other cultural artifacts in digital form, searchable through its Wayback Machine. Similarly, the UK Web Archive performs an automated collection of UK websites (otherwise known as a ‘crawl’) at least once a year, and it collects a number of important websites more frequently (up to daily). The Minister’s petty amendment means that Irish libraries and archives cannot match even the modest collecting of the UK Web Archive, let alone replicate the greater ambition of the Internet Archive.

There is much to be welcomed in the Bill, and I look forward to it being signed into law by the President, but the removal of Senator Warfield’s sensible amendment is a blot on the escutcheon of the Government in its final days in office.

From today’s Guardian:

Spare Rib digital archive faces closure in event of no-deal Brexit

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.

The British Library’s website explains:

Spare Rib Archive – possible suspension of access

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.

Oh dear!

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.

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.