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.

Retrospective - Fair dealing in modern Canada

What are the limits to what you can do with copyrighted material that you've bought? The degree of freedom can vary quite a bit, even within the common law system itself, ranging from more restrictive (and, quite frankly, out-dated) levels of fair dealing such as in the UK, to the broad fair use of the United States. The position of fair dealing in common law countries took a huge leap in the beginning of the new millennium, in the frozen North of all places.

The land of maple syrup, lumberjacks, and apparently fair dealing

The hallmark case of the early 2000s in the development of fair dealing and its application in Canada was CCH Canadian Ltd v Law Society of Upper Canada which not only shaped subsequent legislation, but changed the approach taken to fair dealing within the judiciary. The case was one of several where the Supreme Court of Canada flexed its muscle and actively developed the interpretations of fair dealing provisions in Canada.

To provide the case with some exposition, fair dealing essentially is a set of categories through which copyrighted material can be used. In Canada, the UK and Australia fair dealing is restricted to fixed categories, such as criticism and review, study and research, and the reporting of news, with the US standing alone with a much broader, open-ended policy of fair dealing (in the US referred to as 'fair use'); leaving out set categories and opening up fair use to a much wider interpretation and application by the judiciary. One could describe the former jurisdictions as a feeding bowl approach, where the acts allowed are merely provided as exceptions as opposed to being intrinsically embedded in the copyright provisions or copyright itself as a concept. What this means is that essentially the exceptions are treated as leftovers, or in another sense inferior to that of the rights in copyright and their execution. The US legislation takes a much more lenient approach, evaluating the possibly infringing act through its nature and purpose, clearly allowing for more wiggle-room and judicial interpretation than its counterparts.

The case of CCH dealt with the copying of legal materials for practitioners and law firms within Ontario, seldom including other parts of Canada as well, where cases, legislation and other works were copied and sent to their customers for a fee. The Law Society also offered photocopying services for anyone wishing to copy the materials themselves. CCH Canadian took exception to this use of copyrighted material, some of which were owned by them, and sued the Law Society for copyright infringement. The matter went as far as the Supreme Court of Canada, where the case dealt with a number of issues, but the more influential of which considerations over fair were dealing under the Canadian legislation.

One quote in the case, albeit not directly related to the fair dealing discussed, from the case of Théberge v Galerie d'Art du Petit Champlain Inc by Justice Binnie, showcasing the Court's attitude towards copyright quite well:

"The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)... The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature."

What this approach does differently is discuss the limited nature of the rights, whereas often the rights of authors and content creators alike is treated as absolute while fair dealing is purely annexed to those rights. The balancing of public interest and rights is imperative when considering fairness, which is an operative part of all fair dealing. If balance between people’s interests and their rights is not struck real fairness can never be attained.

In its deliberation of fair dealing the Court formulated the approach that should be taken when assessing proper fair dealing, more specifically fairness in that dealing, using both the US legislation discussed above and the English case of Hubbard v Vosper and set six factors that need to be assessed in determining the fairness in fair dealing; (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. In their decision the Law Society had not infringed copyright and their actions fell square within fair dealing. The purpose of the dealing refers to a possible commercial or defamatory use of the works, while its nature also plays a part in the deliberation, that being whether the work is published or confidential for example. Amount refers to how much of the work was copied, be it a page from a book or the entire work; the more copied, the more likely it will not be a fair amount. Would copying the work be something that has to be done, with no alternatives, or would other ways of accessing or using the same or similar material be available, and at what cost or effort would this come at. Finally whether the copying has a detrimental effect on the work or its sales has to be considered, with a satiric work clearly not affecting a factual work’s sales in the same market. The terms themselves are left relatively open, providing space for deliberation and interpretation on a case-by-case basis.

The vigilant guardians of copyright

Without diving too deep into the specific findings of the Court, one conclusion can be drawn from the outcome and the language used; the Court changed the approach often taken in copyright from a rights holder emphasized approach to a user-centric approach. As stated before showed a change of attitude within the judiciary, placing fair dealing not merely as an allowance provision, but as a set of intrinsic user rights that existed by virtue of the public's need to use their legally purchased material in ways which were not foreseen in the drafting of earlier laws. What the Canadian Supreme Court did was bring fair dealing closer to the 21st century, and brought it back into life. 

This case and ones after it spurred the Canadian Parliament to act and a piece of legislation was introduced, the Copyright Modernization Act, which brought the old laws more in line with the Internet, clarified the position of internet service providers and permitted certain acts of copying by consumers.