The Department of Jobs, Enterprise and Innovation has put on its website the Irish submission to the European Commission consultation on the review of copyright rules. For those keen to know where the Irish reform agenda is heading, it is interesting to look for clues in this document.
Of course this is a response to a series of questions, rather than an open opportunity to theorise about the future of EU copyright, but the Commission consultation document pays close attention to the exceptions to copyright, as does the Irish Report of the Irish Copyright Review Committee, Modernising Copyright, and it is in the exceptions that the most interest – and controversy – lie.
So what, if anything, can we learn from the document, in particular in relation to the position of the Department on the subject of copyright exceptions?
Non-commercial uses
The submission argues the need for greater harmonization for “exceptions that would be beneficial in key strategic policy areas and facilitate societal goals”. Non-commercial uses for research, teaching, reproduction by cultural institutions and uses by persons with a disability are all referred to in this context. A new research exception for data and text mining is singled out for specific mention.
Private copying
The submission advocates examination of the existing exceptions for private copying. In particular, a specific provision to permit format-shifting between devices would provide a legal basis for what has now become common practice. It is notable that cloud storage, potentially a problem for music right holders, is not mentioned.
Of course in most mainland European countries private copying is remunerated largely by levies on blank media and copying equipment. This meets the need for “fair compensation” which is a requirement of the Copyright Directive for private copying exceptions. Levies are not collected in Ireland or the UK, both countries arguing (as does the submission) that we “do not have exceptions which require the payment of fair compensation”. Notwithstanding the distance thus declared, the submission engages with the issue, emphasising the need to simplify levies to reflect recent findings of the CJEU and to take into account the Vittorino Report commissioned by the European Commission.
User generated content
User generated content is often a mix of protected content and original material created by internet users and published on sites such as YouTube. The use of the protected content is frequently unauthorised. The submission makes the case that an exception for UGC might be permitted by the Copyright Directive. This is hard to see (although some UGC might well fall within one of our existing exceptions – such as fair dealing for the purposes of criticism or review, or the permitted European exception for parody, caricature or pastiche.) In any event, the submission recommends exploration of a new exception for UGC created for non-commercial purposes, provided the new work does not have a “substantial adverse effect” on the original work and the authorship of the original is acknowledged.
Linking and browsing
Many have been surprised that these activities, fundamental to the operation of the internet, have been opened up for examination by the CJEU. The decision in the case of Svensson – that linking to “freely available material” on the internet does not infringe copyright – has been helpful and further cases are in the offing. The submission points to the need for legal clarity.
Modernising Copyright
The Report of the Review Committee is described in the submission, reference being made to its recommendations being “in excess of sixty”. Of those sixty, it would not have been appropriate to mention a large number of them in the submission – either because they are not relevant to the consultation and are matters of national competence, or because it is self-evident that they are already provided for in the Copyright Directive.
Of those that are mentioned in the submission, the approach is cautiously worded. In most instances the Department is suggesting the need for greater harmonization, or more clarity, or is pointing to possibilities rather than committing itself to a position. This is presumably, as explained in the submission, because “the Government is currently examining the recommendations in the Report against the broader policy context and the legal scope affecting each of the recommendations”. No firm policy decisions have yet been made. However, it is hard to conclude other than that the Department is in favour of the possibilities identified.
Notable however by their absence from the submission, although they could have been appropriately accommodated in the response, are the proposals in the Report for a fair use exception and the exception for “innovation”. This might be an indication that views have already been formed in the Department on these issues. Or it might not!
