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‘Modernising Copyright’ Report Published in Ireland

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Today the Copyright Review Committee in Ireland published its report, ‘Modernising Copyright‘ (beware, largish file). As mentioned elsewhere, I too made a submission to the committee. Eoin O’Dell (head of the CRC) posted an announcement of its release here.

Like the consultation paper which preceded it in 2012, the final report looks long at first glance. On closer inspection however, its analysis is confined to the first one hundred pages, thereafter follows seventy pages of draft legislative proposals, and the last ten pages are the skimpers’ delight – a precis of the report’s contents for the unmotivated.

Given that my nerdy interest in copyright is not equally distributed, I will not pretend to offer a full overview, but instead focus on the parts which strike me as most salient. these will be dealt with in the order that they appear in the paper, which means that Fair Use comes last, and whilst this initially seems strange, it makes sense with in the waft and warp of the Report’s own logic.

1. The consultation paper was enthusiastic about the creation of Copyright Council (CC) to serve as a policy talk shop open to the vying interests at play in the copyright arena, so no surprise to see a formal recommendation that it be created.

Its membership is to be drawn from all interested parties, which it is noted would distinguish it from analogous superficially similar organisations elsewhere whose principals tend to be rightsowners, or their licensees, or their friends or whatever.

The CC’s functions are to be many and varied, from promoting ‘awareness’ about copyright to researching the social and cultural consequences of the law, providing insight about technical issues and drawing up codes of best practice; all very worthy indeed.

The prospect of more serious responsibilities for the CC is also held out – as possible operators of the eventual domestic system to manage orphan works and of collective licensing agreements devised within a potential digital Copyright Exchange.

2. The cost of intellectual property litigation is a common complaint. The Report argues that the District Court should be enabled to hear cases up to its threshold of 15,000 euros. Another source of whinging is the shortage of Judges capable of tackling the complexity arising in IP cases, here it is suggested that a dedicated court be established at Circuit Court level.

3. Even on the part of those committed to maintaining the basic structure of copyright there has been discomfort at the scale of punishments being meted out to what are ultimately rather mild defendants, remember Jammie Thomas? (How quickly our martyrs fade back into obscurity.) The report has this to say:

there was a great deal of support in the submissions for the idea that remedies for breaches of copyright should be proportionate, and that civil sanctions (such as injunctions and damages) should be graduated. 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.

4. The chapter dedicated to ‘Rightsowners’ contains nothing momentous. The request to make circumvention of digital rights management into an independently actionable form of infringement was rejected. A legislative lunar eclipse creating potentially perpetual copyright in the case of some unpublished works is listed for elimination.

Photographers receive a bone here: they were voluble during the whole process and have been especially worried that the Orphan Works proposals could be used as cover by their enemies and exploiters (everybody!) to strip the attribution from their work, declare it orphaned, and use it without payment. Actually although I’m a bit sarcastic about the tone of their contribution, I have some sympathy for them, caught as they are between a market ever more heavily populated by what were formally amateurs (now armed with  high level equipment and the means to get their photos quickly to agencies over the web), an agency business ever more concentrated Getty etc munching all the competition, and cost-cutting publishers who really would screw them if they could. To allay their fears the Report argues that metadata should be protected, and stripping of same punished.

On a related point however no change is suggested regarding the use of photographs for news as part of fair dealing. I recall trying to research the logic behind this a year ago and could find no clear explanation, and that made me feel a bit dumb. So is it to serve the public interest in news access? To reduce the costs of reporting? Answers on a postcard please.

Meat

5. The real action begins in the section dedicated to ‘Users’. The tone is captured by the first proposed change: fair dealing is to ‘include’ rather than ‘mean’ the exceptions which follow thereafter – consequently the category is to be kept open, available for expansion in the future, in line with further technological change or opportunity.

A range of exceptions permitted under the EU Copyright Directive – but which had never been implemented into Irish law – are then reviewed and it is recommended that each be integrated into the statute, these include:

  • private copies and format-shifting, including into formats for storage ‘in the cloud’
  • parody
  • non-commercial user-generated content
  • extended exceptions for educational purposes (this is limited to ‘formal educational establishments’, something which seems flawed to me given the capacity and actuality of self-organised education online, by definition occurring in largely informal environments.
  • enhanced exceptions for people with ‘disabilities’

6. The above exceptions are all derived from the language of the EUCD and thus of unimpeachable pedigree. In the following sections on ‘Entrepreneurs and innovation’, the Report moves into more creative territory. The crux of it is the proposal for a new exception for transformative works or uses of otherwise protected works. The opening part of the proposed legislative language is worth quoting:

106E. Innovation.
(1) It is not an infringement of the rights conferred by this Part if the
owner or lawful user of a work (the initial work) derives from it an
innovative work.
(2) An innovative work is an original work which is substantially different
from the initial work, or which is a substantial transformation of the
initial work.
(3) The innovative work must not—
(a) conflict with the normal exploitation of the initial work, or
(b)  unreasonably prejudice the legitimate interests of the owner of
the rights in the initial work.

This is then followed by a series of sections limiting its applicability but the overall design represents something of a breakthrough. As an aside, it seems to me appropriate to point out that this move is to my knowledge based on the rather brilliant work of Prof. Lionel Bently at Cambridge University, who submitted a carefully argued submission to both the Hargreaves Report in the UK and then to our Irish Iteration. Therein he argued that whilst the reproduction right had been harmonised, leaving little wiggle room, the adaption right had not, and member states are free to do what they want within the limitations of the Berne Treaty. The proposed section 106 integrates the language and logic of the Berne Three Step test (the threshold legitimate exceptions must meet), but there is a strong case that this is not as stringent as might initially seem, otherwise the US’s fair use clause would already have been found in violation of Berne. Anyway, if one is going to read one technical submission in this whole process it should be Bently’s, IMHO.

7. Next up are proposals relating to heritage institutions, not my cup of tea.

8. Lastly, as if to conclude with a crescendo: fair use. And the Committee has decided that Ireland needs it, whilst being at pains to point out that this is a specifically Irish version rather than some US idea baldly imported.

The test as to whether a use qualifies as fair comprises eight criteria and the language is to be found under section 49A.

(a) the extent to which the use in question is analogically similar or related to the other acts permitted by this Part,
(b) the purpose and character of the use in question, including in particular whether

(i)
it is incidental, non-commercial, non-consumptive, personal or transformative in nature, or
(ii)
if the use were not a fair use within the meaning of the section, it would otherwise have constituted a secondary infringement of the right conferred by this Part.
(c) the nature of the work, including in particular whether there is a public benefit or interest in its dissemination through the use in question,
(d) the amount and substantiality of the portion used, quantitatively and qualitatively, in relation to the work as a whole,
(e) the impact of the use upon the normal commercial exploitation of the work, having regard to matters such as its age, value and potential market,
(f) the possibility of obtaining the work, or sufficient rights therein, within a reasonable time at an ordinary commercial price, such that the use in question is not necessary in all the circumstances of the case,
(g) whether the legitimate interests of the owner of the rights in the work are unreasonably prejudiced by the use in question, and
(h) whether the use in question is accompanied by a sufficient acknowledgement, unless to do so would be unreasonable or inappropriate

These eight elements are structured into three groups: the first cluster (three factors)  probes for elements which could legitimate the use; the next two criteria touch on general matters; the final group of three tests those elements which would weigh against a finding of fairness.

Conclusion

Overall i think there is a lot to like in this report. It display some fancy footwork in working with the constraints of the EU copyright acquis whilst responding to a need for flexibility which can serve as an incubator for economic opportunities. Let’s not fool around here: is still under the Troika and will be dealing with the fallout of the rabid tomcat and its property bubble for a long time to come.

The grand design and originality thus of ‘Modernising Copyright’ thus is the injection of targeted flexibility into the legal framework – this is no mere echo of the Hargreaves Report in the UK, which backed away from Fair Use out of fear at the uncertainty it would necessarily entail. If the Report’s authors have their way,  contested uses in Ireland will first be examined to see if they fit the exceptions spelled out in the EUCD, or checked against the innovation exception if they are derivative works/adaptations. Only if they have fallen at those two fences, will the fair use test be their last chance saloon.

Now I’m curious to hear the responses of the various interests involved.

Later there will be time to ponder my  reservations: the Report kicked for touch on questions around secondary liability, safe harbours etc and remained silent on the conflicts around enforcement.

And then there’s the politics – will Fine Gael and Labour actually do anything with it or will it just be buried?

October 29, 2013 - Posted by | /, copyright, ireland

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