One real amendment and more than fifty other proposals

This is not one story but two, rolled together in a press release from the Irish minister with responsibility for IP matters. Usually, when a government does this, it's a good bet that they're hoping the scent from the more attractive story will mask the odour of the less attractive one. When a member of the IPKat team doesn't take the time to separate the stories out, it's a good bet that he's on holidays (North Yorkshire, thanks for asking, and it's a very nice corner of the world indeed).

The first item in the press release is the much-opposed introduction of injunctive relief against intermediaries such as ISPs (covered here by the IPKat). The press release jumps somewhat awkwardly from a defence of the minister's actions in this regard into an explanation of why copyright is so important, and this sets the stage for the second story, the launch of an important and long-awaited review of copyright by the Copyright Review Committee whose initial work was covered here on the 1709 Blog. No doubt the minister is hoping to bathe in the reflected light of this rather progressive review of copyright, rather than to remain forever depicted as the oppressor of the internet in Ireland. (Incidentally, although the ISP injunction story generated far stronger passions and many more column inches in Ireland than the Copyright Review Committee's initial launch last year, at the risk of being contrarian this Kat is of the view that the Committee's Report has the potential to change the landscape of Irish copyright law far more dramatically, and to a much more positive effect, at that.)

One real amendment
Dealing with the actual legislative amendment first, the IPKat's earlier report set out the expected text of an amendment to the Copyright and Related Rights Act 2000, and there are no surprises in what has been announced as the final unchanged text. The amendment introduces a general power for the Irish courts to grant injunctive relief to copyright owners against intermediaries such as ISPs and possibly others. What made this a newsworthy story was the view of many informed commentators expressing fears that the wording was unnecessarily vague and open to abuse, but such protestations appear not to have had any effect on the minister's thinking.

More than fifty proposals to amend
The report of the Copyright Review Committee has been drawn up by a triumvirate of Professor Eoin O'Dell (Trinity College Dublin), Patricia McGovern (DFMG Solicitors) and Professon Steve Hedley (University College Cork). They were asked to look at Irish copyright law in order to identify and suggest solutions to perceived barriers to innovation. They were asked particularly to look at the merits of a US style ‘fair use’ doctrine and to consider if this would be a realistic option in the current EU context, and were given the chance to suggest changes to EU Directives which might eliminate any barriers to innovation.
 
Their 180 page report has just been published (PDF here,1.4MB) and at first skimming, they appear to have done a very thorough job of evaluating the submissions they received, which of course included many diametrically opposed viewpoints, ranging from "abolish all copyright" to "we need more protection". Reading between the lines one gets the impression that in many cases, these sentiments only just stopped short of the imprecation "won't somebody think of the children?!". In between the extremes, of course, there were many more measured analyses, across the entire spectrum of viewpoints.

The report breaks down the issues into six focus areas, each nominally represented by a different group of interested parties, and the Report devotes a chapter to each: rights-holders, collecting societies, intermediaries, users, entrepreneurs and heritage organisations.A further chapter is devoted to the benefits of a statutorily recognised Copyright Council and another chapter specifically to US-style fair use.

In each area, the Committee has formulated specific questions which need to be addressed, and has where possible set out the suggested text of new or amended sections of the Copyright Act as a basis for discussion, without being committed as to whether the amendments are to be recommended or not. The next stage is a public meeting, followed by a deadline for further submissions and responses to the report. The Committee will then make their recommendations to government.

The IPKat is delighted to see concrete proposals of amendments rather than vague aspirational sentiments, with over fifty new or amended sections being suggested. To take just one example, the "fair dealing" exception relating to reporting of current events is compared with the corresponding exception in the EU directive, and found to be inexplicably narrower. The committee then suggests how the section might be worded if the full breadth of the EU derogation was being implemented, and asks readers to respond with their comments on whether this amended section should be implemented. The same treatment is given to any other sections they can identify as ripe for amendment, except where the proposal isoutside their terms of reference.

The depth of analysis in the Report can be gauged from the list of 86 questions set out below, covering all areas of the review, and on which responses are invited. All of these questions are posed in the context of a particular chapter or section of the Report, and some will only make sense when read in that context. Interested readers can attend a public meeting on Saturday 24 March 2012, from 10:00am until 12:00 noon, in Trinity College, Dublin, and the final date for responses and submissions will be Friday 13 April 2012.

The 86 Questions (as extracted by insideview.ie)

1. Is our broad focus upon the economic and technological aspects of entrepreneurship and innovation the right one for this Review?
2. Is there sufficient clarity about the basic principles of Irish copyright law in CRRA and EUCD?
3. Should any amendments to CRRA arising out of this Review be included in a single piece of legislation consolidating all of the post-2000 amendments to CRRA?
4. Is the classification of the submissions into six categories – (i) rights-holders; (ii) collection societies; (iii) intermediaries; (iv) users; (v) entrepreneurs; and (vi) heritage institutions – appropriate?
5. In particular, is this classification unnecessarily over-inclusive, or is there another category or interest where copyright and innovation intersect?
6. What is the proper balance to be struck between the categories from the perspective of encouraging innovation?
7. Should a Copyright Council of Ireland (Council) be established?
8. If so, should it be an entirely private entity, or should it be recognised in some way by the State, or should it be a public body?
9. Should its subscribing membership be rights-holders and collecting societies; or should it be more broadly-based, extending to the full Irish copyright community?
10. What should the composition of its Board be?
11. What should its principal objects and its primary functions be?
12. How should it be funded?
13. Should the Council include the establishment of an Irish Digital Copyright Exchange (Exchange)?
14. What other practical and legislative changes are necessary to Irish copyright licensing under CRRA?
15. Should the Council include the establishment of a Copyright Alternative Dispute Resolution Service (ADR Service)?
16. How much of this Council/Exchange/ADR Service architecture should be legislatively prescribed?
17. Given the wide range of intellectual property functions exercised by the Controller, should that office be renamed, and what should the powers of that office be?
18. Should the statutory licence in section 38 CRRA be amended to cover categories of work other than “sound recordings”?
19. Furthermore, what should the inter-relationship between the Controller and the ADR Service be?
20. Should there be a small claims copyright (or even intellectual property) jurisdiction in the District Court, and what legislative changes would be necessary to bring this about?
21. Should there be a specialist copyright (or even intellectual property) jurisdiction in the Circuit Court, and what legislative changes would be necessary to bring this about?
22. Whatever the answer to the previous questions, what reforms are necessary to encourage routine copyright claims to be brought in the Circuit Court, and what legislative changes would be necessary to bring this about?
23. Is there any economic evidence that the basic structures of current Irish copyright law fail to get the balance right as between the monopoly afforded to rights-holders and the public interest in diversity?
24. Is there, in particular, any evidence on how current Irish copyright law in fact encourages or discourages innovation and on how changes could encourage innovation?
25. Is there, more specifically, any evidence that copyright law either over- or under- compensates rights holders, especially in the digital environment, thereby stifling innovation either way?
26. From the perspective of innovation, should the definition of “originality” be amended to protect only works which are the author’s own intellectual creation?
27. Should the sound track accompanying a film be treated as part of that film?
28. Should section 24(1) CRRA be amended to remove an unintended perpetual copyright in certain unpublished works?
29. Should the definition of “broadcast” in section 2 CRRA (as amended by section 183(a) of the Broadcasting Act, 2009) be amended to become platform-neutral?
30. Are any other changes necessary to make CRRA platform-neutral, medium-neutral or technology-neutral?
31. Should sections 103 and 251 CRRA be retained in their current form, confined only to cable operators in the strict sense, extended to web-based streaming services, or amended in some other way?
32. Is there any evidence that it is necessary to modify remedies (such as by extending criminal sanctions or graduating civil sanctions) to support innovation?
33. Is there any evidence that strengthening the provisions relating to technological protection measures and rights management information would have a net beneficial effect on innovation?
34. How can infringements of copyright in photographs be prevented in the first place and properly remedied if they occur?
35. Should the special position for photographs in section 51(2) CRRA be retained?
36. If so, should a similar exemption for photographs be provided for in any new copyright exceptions which might be introduced into Irish law on foot of the present Review?
37. Is it to Ireland’s economic advantage that it does not have a system of private copying levies; and, if not, should such a system be introduced?
38. If the copyright community does not establish a Council, or if it is not to be in a position to resolve issues relating to copyright licensing and collecting societies, what other practical mechanisms might resolve those issues?
39. Are there any issues relating to copyright licensing and collecting societies which were not addressed in chapter 2 but which can be resolved by amendments to CRRA?
40. Has the case for the caching, hosting and conduit immunities been strengthened or weakened by technological advances, including in particular the emerging architecture of the mobile internet?
41. If there is a case for such immunities, has technology developed to such an extent that other technological processes should qualify for similar immunities?
42. If there is a case for such immunities, to which remedies should the immunities provide defences?
43. Does the definition of intermediary (a provider of a “relevant service”, as defined in section 2 of the E-Commerce Regulations, and referring to a definition in an earlier - 1998 - Directive) capture the full range of modern intermediaries, and is it sufficiently technology-neutral to be reasonably future-proof?
44. If the answers to these questions should lead to possible amendments to the CRRA, are they required or precluded by the ECommerce Directive, EUCD, or some other applicable principle of EU law?
45. Is there any good reason why a link to copyright material, of itself and without more, ought to constitute either a primary or a secondary infringement of that copyright?
46. If not, should Irish law provide that linking, of itself and without more, does not constitute an infringement of copyright?
47. If so, should it be a stand-alone provision, or should it be an immunity alongside the existing conduit, caching and hosting exceptions?
48. Does copyright law inhibit the work of innovation intermediaries?
49. Should there be an exception for photographs in any revised and expanded section 51(2) CRRA?
50. Is there a case that there would be a net gain in innovation if the marshalling of news and other content were not to be an infringement of copyright?
51. If so, what is the best blend of responses to the questions raised about the compatibility of marshalling of content with copyright law?
52. In particular, should Irish law provide for a specific marshalling immunity alongside the existing conduit, caching and hosting exceptions?
53. If so, what exactly should it provide?
54. Does copyright law pose other problems for intermediaries’ emerging business models?
55. Should the definition of “fair dealing” in section 50(4) and section 221(2) CRRA be amended by replacing “means” with “includes”?
56. Should all of the exceptions permitted by EUCD be incorporated into Irish law, including:
56a. reproduction on paper for private use
56b. reproduction for format-shifting or backing-up for private use
56c. reproduction or communication for the sole purpose of illustration for education, teaching or scientific research
56d. reproduction for persons with disabilities
56e. reporting administrative, parliamentary or judicial proceedings
56f. religious or official celebrations
56g. advertising the exhibition or sale of artistic works,
56h. demonstration or repair of equipment, and
56i. fair dealing for the purposes of caricature, parody, pastiche, or satire, or for similar purposes?
57. Should CRRA references to “research and private study” be extended to include “education”?
58. Should the education exceptions extend to the (a) provision of distance learning, and the (b) utilisation of work available through the internet?
59. Should broadcasters be able to permit archival recordings to be done by other persons acting on the broadcasters’ behalf?
60. Should the exceptions for social institutions be repealed, retained or extended?
61. Should there be a specific exception for non-commercial usergenerated content?
62. Should section 2(10) be strengthened by rendering void any term or condition in an agreement which purports to prohibit or restrict than an act permitted by CRRA?
63. When, if ever, is innovation a sufficient public policy to require that works that might otherwise be protected by copyright nevertheless not achieve copyright protection at all so as to be readily available to the public?
64. When, if ever, is innovation a sufficient public policy to require that there should nevertheless be exceptions for certain uses, even where works are protected by copyright?
65. When, if ever, is innovation a sufficient public policy to require that copyright-protected works should be made available by means of compulsory licences?
66. Should there be a specialist copyright exception for innovation? In particular, are there examples of business models which could take advantage of any such exception?
67. Should there be an exception permitting format-shifting for archival purposes for heritage institutions?
68. Should the occasions in section 66(1) CRRA on which a librarian or archivist may make a copy of a work in the permanent collection without infringing any copyright in the work be extended to permit publication of such a copy in a catalogue relating to an exhibition?
69. Should the fair dealing provisions of CRRA be extended to permit the display on dedicated terminals of reproductions of works in the permanent collection of a heritage institution?
70. Should the fair dealing provisions of CRRA be extended to permit the brief and limited display of a reproduction of an artistic work during a public lecture in a heritage institution?
71. How, if at all, should legal deposit obligations extend to digital publications?
72. Would the good offices of a Copyright Council be sufficient to move towards a resolution of the difficult orphan works issue, or is there something more that can and should be done from a legislative perspective?
73. Should there be a presumption that where a physical work is donated or bequeathed, the copyright in that work passes with the physical work iself, unless the contrary is expressly stated?
74. Should there be exceptions to enable scientific and other researchers to use modern text and data mining techniques?
75. Should there be related exceptions to permit computer security assessments?
76. What is the experience of other countries in relation to the fair use doctrine and how is it relevant to Ireland?
77a. What EU law considerations apply?
77b. In particular, should the Irish government join with either the UK government or the Dutch government in lobbying at EU level, either for a new EUCD exception for non-consumptive uses or more broadly for a fair use doctrine?
78. How, if at all, can fair use, either in the abstract or in the draft section 48A CRRA above, encourage innovation?
79. How, in fact, does fair use, either in the abstract or in the draft section 48A CRRA above, either subvert the interests of rights holders or accommodate the interests of other parties?
80. How, in fact, does fair use, either in the abstract or in the draft section 48A CRRA above, amount either to an unclear (and thus unwelcome) doctrine or to a flexible (and thus welcome) one?
81. Is the ground covered by the fair use doctrine, either in the abstract or in the draft section 48A CRRA above, sufficiently covered by the CRRA and EUCD exceptions?
82. What empirical evidence and general policy considerations are there in favour of or against the introduction of a fair use doctrine?
83a. If a fair use doctrine is to be introduced into Irish law, what drafting considerations should underpin it?
83b. In particular, how appropriate is the draft section 48A tentatively outlined above?
84. Should the post-2000 amendments to CRRA which are still in force be consolidated into our proposed Bill?
85. Should sections 15 to 18 of the European Communities (Directive 2000/31/EC) Regulations, 2003 be consolidated into our proposed
Bill (at least insofar as they cover copyright matters)?
86. What have we missed?