In May 2011 the Minister for Jobs, Enterprise and Innovation appointed a committee of three to examine copyright law. The brief of the Committee centred on two questions: whether copyright law needs specific reforms in order to remove barriers to innovation; and whether a US-style “fair use” exemption to copyright might be appropriate in an Irish context.
Modernising Copyright, the Report of the Copyright Review Committee was published on October 29th and formally launched on December 9th 2013.
The recommendations of the Report are summarised below. There are a number of proposals designed to strengthen the copyright infrastructure. The main thrust of the Report however involves a range of proposed new exceptions to copyright designed to facilitate greater access to protected works. These include a unique version of “fair use”.
THE COPYRIGHT INFRASTRUCTURE
· The Report proposes the establishment of a Copyright Council. This would be independent of Government, operated and funded by the “copyright community”. It would be a standard type of non-profit company, with a broadly-based subscribing membership and a board of 13 directors intended to represent the broad sweep of copyright interests. Its objectives would include leading the debate on copyright; making proposals to Government; developing codes of best practice for the sector; undertaking research projects on the social and economic impact of copyright; promoting creativity, sharing, open access and innovation.
· The Copyright Council would be given the task of exploring the feasibility of a Digital Copyright Exchange. This would be a type of online licensing platform, facilitating easier access to legal licences for the use copyright works. This reflects a development in the UK, where the Copyright Hub has been established for the same purpose.( http://www.copyrighthub.co.uk)
· A mediation service for copyright disputes should be offered by the Copyright Council. In addition, the existing Small Claims Procedure in the District Court should be made available for all intellectual property disputes valued at up to €15,000. A specialist Intellectual Property Court should also be established at Circuit Court level, to take claims valued at up to €75,000. If adopted, these changes would make a very significant difference to the copyright system, offering new forms of dispute resolution, especially for claims of low value.
COPYRIGHT EXCEPTIONS
Adoption of all EU exceptions:
It is recommended that the existing exceptions to copyright should be expanded to take advantage of all exceptions permitted under the EU Copyright Directive. This is an approach currently being pursued in the UK. It would means new or expanded exceptions within certain limits for:
· private copying, including format-shifting between devices for private use;
· caricature, parody, pastiche or satire;
· educational purposes;
· uses by persons with a disability;
· copying by heritage institutions for preservation, archiving and for inclusion in exhibition catalogues
New exceptions
Entirely new exceptions include the following:
· Linking would be declared to be a non-infringing act, except where the provider of the link ought to have been aware that the link provides access to infringing material;
· In ease of news and other aggregators, a “very small snippet” of a protected work might be reproduced alongside a link, subject to a limit of 40 words;
· “User-generated content” would be legitimised in a non-commercial context, provided it does not have an adverse effect on the exploitation of the original work;
· Educational establishments would be permitted to reproduce or publish for their educational purposes any work found on the internet, unless the work is protected by a technological protection measure (such as encryption), or there is a clear prohibition of use posted on the internet site, or the institution should otherwise have known that the work was available on the internet without the consent of the copyright owner;
· Content-mining would be permitted, in the context of education, research and private study.
Exception for “Innovation”
A unique proposed exception is one for “innovation”. It would be permissible for “an owner or lawful user” of a work to derive from it an “innovative work”. This is one which is substantially different from, or transformative of the initial work. It must not conflict with the normal exploitation of the original work and must not prejudice the legitimate interests of the original right holder. The creator of the innovative work must notify it to the original right holder within a “reasonable time” of making it available, and if the original right holder can demonstrate that that s/he had already embarked on a similar process of exploitation, the exception would not apply.
Fair Use
In what is seen as a radical proposal:
· “Fair use” is given an overarching role governing all of the exceptions, with all permitted uses to be regarded in future as examples of fair use.
· There is no definition of “fair use”, but it is clear that a court will be able to construe new exceptions to copyright, having first examined whether one of the existing exemplars applies.
· In conducting this exercise, the court must take into account such matters “as it considers relevant”, including factors such as the purpose of the use, the amount of the work used and the impact on the normal exploitation of the work.
This new exception would give the court a broad discretion to formulate new exceptions to copyright, unique in Europe and very similar to that which pertains in the US.
Progress
At the launch of the Report on December 9th, Minister Sherlock made it clear that there will be a further process of review by Government before any amending legislation is commenced. This review is ongoing.
