Written by Ezra Steinhardt and Colin Warriner
On 29 October 2013, the Republic of Ireland’s Department of Jobs, Enterprise and Innovation (DJEI) published a report containing proposed amendments to its copyright laws, named “Modernising Copyright” (“the Report”). Taking account of submissions received during a public consultation that ran between February and May 2012, the DJEI’s Copyright Review Committee (CRC) uses the Report to recommend a series of amendments to the Irish Copyright and Related Rights Act, 2000 (CRRA).
Some of the Report’s key findings and recommendations are outlined below.
The Report addresses “fair dealing” and “fair use” as separate, albeit related concepts. The CRRA already contains an exception for “fair dealing” in copyright, but the Report proposes to expand the scope of this provision, by changing the current definition of the exception to one that “includes” rather than “means” certain listed uses. The CRC acknowledges that this new formulation will create some legal uncertainty as to which uses are, or are not, included in the scope of the “fair dealing” exception, but argues that this disadvantage is outweighed by the greater flexibility that will be provided for under this more open-ended formulation
The CRC also considered whether a US-style “fair use” doctrine could be applied in Ireland, but ultimately concluded that a more circumspect, “specifically Irish version” would be more appropriate. The Report proposes a new section of the CRRA to clarify that all statutory exceptions ̶ including the newly expanded “fair dealing” ̶ are “examples” of fair use. However, those exceptions should be exhausted before a court considers any other claim to fair use. The proposals set out eight factors that courts should take into account in such deliberations, including the extent to which the use is analogically similar to the exceptions, and the purpose and character of the use.
It is possible to foresee potential problems with this approach. Article 5 of the EU Copyright Directive suggests that only specific, enumerated exceptions to copyright should be allowed by Member States, and the ruling by the Court of Justice of the European Union (CJEU) in Case C-302/10 Infopaq states that such exceptions should be interpreted strictly. Given that, it is unclear how Ireland’s proposed open-ended exception could be reconciled with current European law, which Ireland must follow.
In addition to its recommendation on fair use, the CRC also proposed a new “innovation exception” for derivative works, which would enable the owner or lawful user of an initial work to derive an original work which either substantially differs from, or substantially transforms, the initial work, without infringing copyright. This new exception would be subject to limitations, however: the innovative work would not be permitted to conflict with the normal exploitation of the initial work or prejudice the legitimate interests of its owner, and there must be an acknowledgement and notification of the original owner where not unreasonable and impractical.
This exception may be subject to further refinements, pending a reference made September 2013 to the CJEU, Case C-419/13 Art & Allposters International, which concerns right to transformatively use a work under European law. Any future Irish “innovation exception” will need to conform to the ruling made by the CJEU.
Private copying and private copy levies
The Report recommends the adoption of the “private copying exceptions”, as contemplated in the Copyright Directive, into the CRRA. These exceptions allow, for private use: reproduction on paper (i.e., photocopying); format-shifting (which the Report states should include remote storage in the cloud); and making back-up copies.
In the Report, the CRC also rejects calls by rightsholders to make such private use exceptions subject to private copying levies.
The CRC proposes a further amendment to the CRRA that would render void any unfair contractual term that purports to prohibit or restrict a statutory exception to copyright. The requirement that only unfair terms may be made void is considered a concession to rightsholders, but the amendment, if enacted, will require additional diligence when businesses and rightsholders draft consumer contracts related to copyright.
Linking and marshalling
The Report acknowledges that the question of whether online linking falls within the scope of copyright protection is currently a contentious one. It cites several recent references to the CJEU that have sought decisions on the issue (Svensson, C More Entertainment, and BestWater International), and the August 2013 amendments to German copyright law that establish that mere linking is not an infringement.
With these developments in mind, the CRC proposes that linking should be an exception to copyright in Ireland, with the proviso that where the provider of the link knew or ought to have been aware at the time that the link connects with an infringing copy, the “linking” exception will not apply, unless the provision of the link is in the public interest.
The CRC also defines “marshalling” in the Report, as including the practice of providing an excerpt of a work alongside a link to it ̶ a model often used by news aggregator websites ̶ and suggests that such excerpts develop the concept of linking by providing a context for the linked work. The Report also proposes an exception for “marshalling”, subject to limitations (likely in response to submissions by rightsholders, who argued that “marshalling” was an infringement of the copyright in the marshalled content). The CRRA, if amended as proposed, would allow the reproduction of a very small snippet of the linked work reasonably adjacent to the link. A “very small snippet” is quantified as no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words.
Technological protection measures (TPMs)
The CRC has attempted to strike a balance between the points raised by rightsholders and users in their respective submissions to the public consultation.
On the one hand, the draft CRRA amendments clarify that rightsholders can still seek remedies for infringements of TPMs even when a work has been licensed, and also establish that a circumvention of a TPM is actionable as though it were an infringement.
On the other hand, the CRC proposes that where a TPM prevents a user from performing permitted acts, the circumvention of that TPM will not be actionable, and a user should have a new remedy against the rightsholder. This proposal appears to go beyond similar but narrower provisions in the existing European Copyright Directive.
New public copyright institutions
In addition to amendments to the copyright exceptions under existing Irish law, the Report also proposes an overhaul of the institutional and enforcement framework for copyright in Ireland. The Report recommends the creation of an independent, self-funded Copyright Council of Ireland, which would have a broad subscribing membership and a remit that would include education and advice on copyright issues and advocating for copyright policy developments. The Copyright Council would also establish a Digital Copyright Exchange, a voluntary alternative dispute resolution service, and an Irish Orphan Works Licensing Agency.
Alongside these developments, the Report argues for the establishment of specialist IP courts at the District and Circuit levels.
The CRC will convene a public forum on 9 December 2013, at the Royal Irish Academy in Dublin to present its findings and allow scrutiny by the copyright community.
Colin Warriner is a trainee in Covington & Burling’s London office.