The anticipated copyright review is now underway, a Review Committee having been established by Minister Richard Bruton.
The review process involves a short window of opportunity for the making of submissions by interested parties – expiring on June 30th. The Committee will examine the submissions and produce a Consultation Paper on which further submissions will be invited, to be received by 22nd September. The Committee will then, before end 2011, present a Report to Government with a set of recommendations for legislative change.
The review is very welcome. It has been apparent for some time that the 2000 Act is in need of reform. The decision late last year in the UPC case highlighted a particular set of problems, but there are others.
The terms of reference for the review centre on these two objectives:
“..to identify any areas of the legislation that might be deemed to create barriers to innovation and to make recommendations to resolve any problems identified”, and
“..to examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.
The wording here points to a balancing act. Leaving aside the issue of “fair use” for a moment, the focus of the review is the identification of areas of the existing legislation that pose a barrier to innovation. This suggests a concern to contain the scope of the exercise. If you compare the wording with the terms for the Hargreaves Review, you can see that Hargreaves is also focused on innovation, but extends way beyond the removal of barriers in existing legislation, to an examination of how the framework can be improved in order to promote entrepreneurialism and growth and give the UK a competitive advantage. Of course Hargreaves covers the whole IP spectrum and not just copyright, but the same delineation of scope applies.
However what constitues a “barrier to innovation” almost defies containment, and allows the Review Committee plenty of scope. All interested parties will have the considerable advantage of having the Hargreaves Report as a reference point. The European Commission will also have published its new IP strategy, currently scheduled for May 24th. This should provide some clear signals on the direction of EU copyright policy, and the limits that are implied for national legislation. So the timing of the review could really not have been more fortuitous.
On the “fair use” issue, the Government is delivering on a commitment given in its programme for government. Hargreaves is expected to reach some conclusions on whether such an exemption ought to be adopted in the UK. A number of copyright academics in both the UK and in Europe think that copyright exemptions are looking increasingly inflexible and ill-adapted to a fast-changing environment, and that while a US-style fair use doctrine might not exactly fit the bill, it is worth exploring whether any aspect of it might be advantageous from a European perspective. Thus far, the European Commission has not shown any liking for the proposition. The principal difficulty is of course that anything that proposes to shift the balance between right holder and user will be enormously contentious and not undertaken lightly. The Review Committee will presumably present the arguments in order to inform the policy position that the Government will adopt.
