15 November, 2013

Irish Copyright Review: Modernizing Copyright

A wave of copyright modernization seems to be sweeping the common law system, with reviews being undertaken in both the United Kingdom and Australia at the moment. Not to be outdone by its common law brethren, Ireland launched its review of its copyright legislation in 2011, with the final report having been released late last month after almost a year's delay in its release. Although arguably a lesser force within the common law system, Ireland's review of copyright does still serve as an indication of where copyright will be potentially headed in the future; both in the common law and elsewhere. As the report's first sentence aptly states: "Copyright reform is in the air".

The report is very extensive, touching upon most contentious areas of copyright and attempting to suggest changes to the currently in-force Irish Copyright and Related Rights Act 2000. While all of the topics discussed merit further evaluation and offer much to the current discourse of copyright not just in Ireland, but also globally, discussion will be left to only parts of the report by this writer.

Fair Dealing

One of the biggest questions in copyright globally is the line where fair dealing (or fair use) should be drawn, and Ireland is no exception to this. Under the current Act Ireland has a very limited fair dealing scheme which allows for the use of copyrighted materials in research and private study and in criticism or review. The report does recognize the incredibly limited nature of the current regime and attempts to remedy its shortcomings under the recommendation "...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". These factors would include a very wide scope of consideration, varying from the purpose and nature of the copying to the possibility of obtaining the work legally; a lot of which resemble considerations already used in a number of other common law countries.

The report actively tried to distinguish its approach to fair use from the often used US fair use doctrine, which has been adopted in a number of nations even outside of the common law, but the suggested regime does not differ largely from its US counterpart as presented. It does go further in its considerations and presents Irish courts with more specific factors to use, but one can clearly see the connection with the American provisions. All in all the suggested changes are incredibly welcome, and showcase the importance of fair dealing in copyright; something which this author and others have advocated on a number of occasions. In addition very similar considerations were put forth in the Australian submissions for reform; however their final form is still pending the release of the final report by the Australian Law Review Commission.

Intermediaries

The report also deals with the role of intermediaries in potential infringement situations, considering more clear immunity provisions to the ones already provided under Irish law. The report proposes changes which would bring these immunities better in line with the European Union Copyright Directive.

After the tightening up of already existing provisions the report also suggests further protection of potential secondary infringers, especially as "...in the current regime, intermediaries bear a significant burden in implementing monitoring or “notice-and-action” procedures, and there are arguments as to whether this burden is a legitimate cost of doing business as an intermediary or an unjust cost of protecting rightsowners’ rights". This would be a EU matter to further legislate on and provide clarity, as the provisions relating to this are largely of EU origin.

In addition the report suggest a potentially more proactive approach by the Irish legislature to introduce immunity provisions specifically relating to search engines, immunity as a result of the sophistication of internet browsers (in other words, the displaying and caching of copyrighted content, causing the browser to being the primary infringer), and immunity provisions relating to cloud computing. As the report states: "...Irish law should await whatever legislative proposals emerge from the EU consultation. If nothing comes of it, then it may be appropriate at that stage to return to the question of Irish legislative immunities". Immunities over linking to content were also discussed, raising the recent UK Supreme Court decision of Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd as an example of taking these immunities in an express direction.

Users

The extent to which you can use your legally acquired content has been a contested issue in copyright for decades. The report poignantly raises the heart of the issue: "...the centrality of rightsowners in copyright law, but the law recognises other interests as well, and seeks to balance the interests of rightsowners in protecting their monopoly against other legitimate interests in diversity and expression". The balance between expression and creation by the end-user against the rightsowners' interests is paramount, but clearly there have been issues on the balance being swayed towards the rightsowners in recent years.

In addition to the aforementioned fair dealing considerations the report raises the potential to add new exceptions for private use. Private copying is largely supported by both sides, and in itself supports "...users’ reasonable assumptions and basic expectations" relating to the use of their legally acquired content. This has been suggested in the above EU Directive, and the report endorses its introduction into Irish law. Certain reproduction rights relating to different formats and back-ups were endorsed, again reflecting the reasonable assumptions made by users over their material.

An exception for parody, caricature and satire was also suggested, reflecting a much larger introduction of this exception in the common law; one which has been introduced in Australia a while ago. Following the recent changes in Canada the report also suggests the creation of a non-commercial user generated content exception. Although not expressly mentioned in the above EU Directive, the report still recognizes its inclusion in spirit and supports its express introduction into Irish law.

Conclusion

Even though the report is far more extensive than what is discussed above, it showcases a wave of change in copyright globally. This change has been late in its introduction, with still years till the potential changes would even be implemented, but shows a willingness to adapt and mold the law to modern users and spheres. This writer endorses this and highly awaits the final report here in Australia late this month in further assessing where things will go. Right now Ireland is paving the way in the wake of the change in the common law.

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