“Modernising Copyright”, the much awaited report of the Copyright Review Committee, was published on 29 October 2013 and is being officially launched today 9 December 2013.
The report recommends the establishment of a Copyright Council of Ireland with a mandate for advocacy, education, management of collective licensing and alternative dispute resolution. It also proposes a lower court IP jurisdiction, namely the introduction of an intellectual property claims procedure in the District Court and the establishment of a specialist intellectual property division in the Circuit Court which, although a laudable ambition, will prove challenging unless provision is made for specialist judges. More controversial are the recommendations for copyright exceptions in relation to linking and innovation, the expansion of the traditional Anglo-Irish approach to fair dealing and the approach to new technology rights.
The report acknowledges the fundamental importance of linking and proposes that it should be considered as an exception to copyright which will not apply where the alleged infringer acts with “knowledge”. It also proposes a sort of de-minimis exception to the indexation and aggregation of content, along the lines of the German exception, for small snippets of text of no more than 160 characters or forty words, that are adjacent to a link. The intention is to facilitate the development of on-line information provision without unreasonably prejudicing the interests of authors. A worthwhile aim, but how this will work in practice is quite another issue.
The “pigeon–hole” approach to fair dealing that we are so familiar with comes in for extended treatment. While the pigeon holes have themselves been updated and revised to reflect the reality of uses for private purposes in a new technology era, the recommendation for fair use takes the existing exceptions, contained within the Copyright and Related Rights Act 2000, and then applies eight additional factors which can be considered when determining if a use is fair. These include the nature of the work, the amount of the portion used, the purpose and character of the use, the substantiality of the portion used, the potential impact on commercial exploitation, whether the work can be obtained at a normal commercial process, whether there is unreasonable prejudice to the owners and whether there is an acknowledgement. This is a kind of modified approach to “fair use” US-style and, hopefully for users, it will not engender as much litigation as that approach has.
The Committee recommends that there should be a new, technology-neutral, definition of “broadcast”. It also proposes the strengthening of technological protection measures to allow rights owners to seek remedies for infringement, even where the work has been licensed. There is also a recommended provision which allows rights owners to treat the circumvention of a technological protection measure as an infringement of copyright.
The position of users is greatly improved by the Report which recommends that the full range of exceptions permitted by EU law should be introduced into Irish law, together with exceptions in relation to education, disability and heritage and a recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.
Many of the recommendations put forward by the Committee would, if adopted, revolutionise copyright law in Ireland but the road ahead is long. The Department of Jobs, Enterprise and Innovation must now review the Report before making legislative proposals to Government. There is also the not insignificant issue of harmonisation across the EU, in the interests of achieving a single market in copyright based sectors, that will no doubt focus minds in Brussels – an interesting and complex debate in a nascent “smart economy” context. Let’s hope that the issues do not prove to be all too hard.