In 2011, the Government established the Copyright Review Committee. The Committee consisted of Dr Eoin O’Dell (TCD), Patricia McGovern (DFMG Solicitors), and Prof. Steve Hedley (UCC). They were tasked with producing a Report that would review the current regime of copyright in Ireland, and in particular, any barriers it presented to innovation in a digital world. To do so, they invited submissions from many different stakeholders with interests in the area of copyright, “to ensure that the full range of views of the copyright community was available to them”. They also looked to other territories that had undertaken a process of reforming their copyright legislation. The Report was published in late 2013.
At its heart, the Report found that “inadequate copyright protection undermines innovation” and creators feel much more secure in creating when they know that the legislation can protect them and their work.
Modernising Copyright[i] made several recommendations that could be made to the present legislation. Principle among them, the Committee recommended:
- Improved systems of redress for Copyright disputes, including specialist intellectual property (IP) tracks in the District and Circuit Courts;
- Tightly-drawn but numerous exemptions for the purpose of supporting innovation, in line with the exemptions set out in Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[ii];
- Redefinition of terms in relation to heritage and education institutes;
- Development of current legislation to encapsulate technological advances and digital behaviours;
- A version of a Fair Use doctrine, akin to that in place in the US; and
- The establishment of a Copyright Council of Ireland.
On 13 March 2018, the Copyright and Other Intellectual Property Law Provisions Bill 2018[iii] was presented to the members of the Oireachtas, sponsored by Heather Humphreys TD, Minister for Business Enterprise and Innovation. The Bill takes “account of certain recommendations for amendments to that Act contained in the Report”, but does not address all of the main recommendations. In particular, no provisions are provided for the establishment of a Copyright Council of Ireland, and there is no version of a Fair Use doctrine contained within. However, the Bill is extensive, and makes many moves to aid in the modernisation of the current legislation. This update is not only necessary, but overdue. Technological advances move much quicker than legislation, given the nature of both. The digital landscape is much different now than in the early 2000s. Many of the current provisions are anachronistic, and loopholes develop as quickly as the tech-savvy generation can envisage new ways to use copyrighted materials.
The amendments are many, covering a wide range of creative disciplines. Below, we will delve into some of the main issues mentioned above.
Systems of Redress
In the Report, some attention is paid to the issue of registered rights versus right by default. However, right by default is not only the international standard, but “registration is precluded by Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works”, to which Ireland is a party. This right imbues the rightsowner with the ability to decide who can copy their work (as legislated for in section 37(1)(a) of the Copyright and Related Rights Act 2000, hereafter referred to as the CRRA), including in digital settings, such as on a website.
“It is not enough that copyright-owners hold rights; they must also be able to seek and obtain appropriate and effective remedies when they their rights infringed.”
The Committee suggested that current Small Claims procedures of the District Courts could be extended to include IP claims. They also suggested a specific IP court could be established within the Circuit Court. This would include an appeal system for the granting of license rights in the IP court of the Circuit Court.
Section 2 of the 2018 Bill provides for the repeal of Section 96 of the Trade Marks Act 1996. Subsequently, Section 5 provides for the extension of the jurisdiction of the above courts to facilitate rightsholders brining “lower value IP infringement claims for relief in civil proceedings within the monetary jurisdiction of those Courts”. It does this by inserting Section 16(a) and 16(b).
Section 32 of the Bill extends the rights that are currently afforded to the rightsowner to any relevant license holder. This allows either party to pursue redress where rights are contravened.
The “alternative dispute resolution system” suggested by the Committee does not appear in the Bill, as initiated. This would have included a graded and proportionate approach to sanctions and remedies.
“In this way, at one end of the scale, unintentional breaches would not be met with significant awards of damages, and that, at the other end of the scale, the most serious breaches would be appropriately dealt with by the award, for example, of restitutionary, exemplary or punitive damages.”
This is important in removing or minimising barriers to innovation.
The Copyright Directive 2001 set out a large number of exemptions to findings of infringement. The Bill encompasses many of the exemptions.
Section 11 introduces a new exemption “for criticism or review of a work, provided that such use is not expressly reserved and that the copy and communication are accompanied by a sufficient acknowledgement”.
Section 12 provides for an exemption for the purpose of “caricature, satire and parody”.
On a more digitally-focused front, Section 13 provides for an exemption for “Text and Data Mining (TDM) for non-commercial research”, an exemption that the Committee noted had the potential to yield “significant social benefits”.
Other exemptions that have been transposed from the 2001 Directive include an exemption for the purpose of creating copies of works in order to make them accessible to those with disabilities (Sections 24, 25 and 26).
The Committee’s recommendation for an exemption for user-generated, non-commercial content does not appear to have been absorbed into this iteration of the Bill.
The Report’s suggestion of a Fair Use clause would travel further into this territory. That will be discussed below.
Educational and Heritage Institutes, and Legal Deposit
It was the Committee’s recommendation that the “existing education exceptions relating to ‘research or private study’ should be amended to cover ‘education, research or private study’,” and that “those relating to ‘instruction and examination’ should be amended to cover ‘education and examination’, and that such exceptions should extend to distance learning and the use of material available online”. Section 14 of the Bill allows for these exemptions, by substituting an amendment in place of Section 57 of the CRRA. The amendment states that this exemption will only apply where there is no relevant licensing scheme for educational establishments in place.
Section 4(d) and 4(e) amend and expand the definition of ‘educational establishment’ and ‘education’ to include various forms of education available in a digital world.
In the Report, the Committee states,
“We recommend that references in the current legislation to “libraries and archives” be replaced with a more generic reference to “heritage institutions” (as defined in section 22(2) of the [Draft 2013] Bill), that such institutions should be able to format-shift works in their collections for archival or preservation purposes, to display such works on terminals in the institutions, and to use them in public lectures and in catalogues relating to exhibitions”.
While the suggestion of broadening the term, Sections 15-18 of the 2018 Bill allow for non-permanent copying by libraries and archives (S.15) and use of images of licensed works in the advertising of exhibitions (S.16); creating permanent copies of works for preservation and archive purposes (S.17); and display works in their permanent collections, or dedicated terminals on the premises of the library or archive, for the sole purpose of education, teaching, research or private study once accompanied by a sufficient acknowledgement (S.18). This provision also extends to works displayed during public lectures.
At the moment, there is a system of legal deposit in place for copyrighted work, as per Section 189 of the CRRA, which aims to ensure,
“the nation’s published output (and thereby its intellectual record and future published heritage) is collected systematically, to preserve the material for the use of future generations and to make it available for readers within the designated legal deposit libraries.”
A recommendation of the Report was to “extend this to our digital heritage”.
Section 27 of the Bill allows copyright deposit institutions the ability to collect non-print work systematically to produce a shared archive of digital works as well as creating an obligation on publishers to provide an electronic copy of a publication if requested by a deposit institution.
Amendments to account for digital advances
The Report singled out several issues that are, in nature, specific to a digital environment. For example, they recommend that protection be extended to watermarks and metadata on photographs and videos, and that removing or changing these would qualify as an infringement. Section 4 of the Bill expands the definition of “rights identifying information” to include digital data of this kind.
The Report also expresses the opinion that an exemption should be defined for snippets of text used in the sharing of links to original source material, as long as this snippet is “reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words”. These snippets are not mentioned in the current version of the 2018 Bill.
Section 4(e) includes many new definitions on the basis of technological advances since the CRRA was written into law. These include “electronic transmission”, which does not include transmission by means of MMDS (4(e)(a)) or digital terrestrial retransmission (4(e)(b)), and “excluded data information” which means a computer program (in whole or in part) or the source code of a website.
The Report makes reference to the value of employing a Fair Use doctrine,
“As to the recommended fair use exception, it is very circumspect, and differs substantially from the US doctrine. We recommend that the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors”.
This would be much more stringent than in the US, where the Fair Use doctrine only applies five factors. Five of the eight factors would relate to personal use. They would be:
- reproductions on paper for private use;
- parody; and
- non-commercial user-generated content.
While parody is covered under the EU exemptions, the remaining four factors are not included in the 2018 Bill.
Other factors would include Fair Use exemptions for news media, religious use and official celebrations.
It is worth noting that, while the above mentioned Copyright Directive exemptions are examples of Fair Use, a tightly-drawn Fair Use doctrine would examine past these definitions into more of a grey area. In the US, significant case law has led to a number of “tests” when examining a claim of Fair Use of copyrighted media. For example, the idea of “substantial similarity” in works – either “fragmented literal similarity” or “comprehensive non-literal similarity” – was developed by Melville Nimmer, a noted copyright authority. There is also a “pattern test” developed by Prof. Zechariah Chafee, which is primarily used to test fiction, comparing elements of plot and character between two works to see if substantial similarity exists.
In the view of the Committee, it is these
“precedents in fair use cases [that] have allowed US copyright law to find generally beneficial accommodations with new technologies (such as photocopiers, VCRs, and online search) as they have arisen, without the need for cumbersome statutory amendment”.
They also note that many submissions they took regarding this issue conflated these tests with the Berne Three-Step Test, as employed under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works[iv] in 1967.
The 2018 Bill makes no reference to “Fair Use”.
Copyright Council of Ireland
Perhaps the most notable disparity between the recommendations of the Report and the new proposed legislation is the decision to not provide for the establishment of an “independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures”. This body is referenced throughout the 2013 Report in a way which underpins many of the recommendations further on.
Many of the submissions received by the Committee also called for a similar entity, which would draw a broad subscriber-base from the copyright community. The Council would be based “on principal objects that ensure the protection of copyright and the general public interest as well as encouraging innovation”. The ideal structure would see a Board, made up of members that would represent a wide range of stakeholders in copyright matters. These could include rightsowners, collecting societies, intermediaries, licensees, users, entrepreneurs and heritage institutions. Many submissions also suggested technological experts should be part of the Board, to ensure any developments are technologically feasible.
They would be responsible for increasing awareness around copyright practices, researching issues of note, fostering a dialogue between stakeholders, publishing standards and codes, and promoting creativity, sharing, open access and innovation.
A further function of the Council would be to enable it to decide to establish a voluntary Digital Copyright Exchange aimed at providing a mechanism to expand and simplify the collective administration of copyrights and licences.
There would also be scope for the Council to facilitate alternative dispute resolution solutions, “which would be voluntary, independent, neutral, impartial and expeditious in nature”.
The Copyright and Other Intellectual Property Law Provisions Bill 2018 has only reached Order for the Second Stage, and it is certain to face some changes throughout the stage of scrutiny. The Bill, as initiated, does significantly work towards a modernisation of the copyright regime. In the main, this is done by redefining the definitions of what constitutes a copyrightable work, and what constitutes copyright infringement.
Many of these changes have clear roots in Modernising Copyright. So too are there notable differences between the two.