Modernising (Irish) Copyright Katseries #1: The Innovation Exception

"Aww ... There is nothing like the smell
of copyright reform
thought dreamy Bruce 
"Copyright reform is in the air." These are the inspired and inspiring opening words of the exciting Report released on 29 October 2013 by the Irish Review Committee and entitled Modernising Copyright (here). 

The Review Committee was given the following Terms of Reference:

1.    Examine the present national copyright legislation and identify any areas that are perceived to create barriers to innovation. 
2.    Identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation. 
3.    Examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context. 
4.    If it transpires that national copyright legislation requires to be amended but cannot be amended (bearing in mind that Irish copyright legislation is bound by the European Communities Directives on copyright and related rights and other international obligations), make recommendations for changes to the EU Directives that will eliminate the barriers to innovation and optimise the balance between protecting creativity and promoting and facilitating innovation.

Besides recommendations concerning the creation of a Copyright Council of Ireland and specialist IP courts, the Report deals with issues that are particularly close to the heart and mind of this Kat, including orphan works, the originality requirement and copyright exceptions. With regard to the latter, the Report advocates the introduction of "tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links", alongside implementation of the full range of exceptions allowed under the InfoSoc Directive, including "format-shifting, parody, education, disability and heritage, as well as related exception for non-commercial user-generated content [but where is this to be found in the Directive?] and content mining".

As IPKat readers will promptly reckon, this Report is a gold mine of ideas for reforming copyright, not just in the Emerald Island.

This is why this Kat has decided to select some of the issues dealt with therein and run a Modernising (Irish) Copyright Katseries, starting with the intriguing "innovation exception", which is intended to allow specifically transformative use(s) [under US law, this is part of the broader fair use doctrine: see recent examples here and here]

The "innovation exception"

One of the Terms of Reference was to see how innovation could be incentivised. The Report holds the view that, since the InfoSoc Directive did not harmonise the adaptation right, EU law does not prevent EU Member States from adopting their own innovation exceptions. Therefore, subject to the three-step-test (as codified - among other things - in Article9(2) of the Berne Convention and Article 5(5) of the InfoSoc Directive), the Report suggests that

"it would not be an infringement of copyright if the owner or lawful user of a work ... derives from it an innovative work, where the latter is an original work which either substantially differs from, or substantially transforms, the initial work."

Despite the slight presence of more detractors than supporters at the stage of public consultation, it is proposed that the following "tightly-drafted and balanced exception for innovation" is introduced into Irish copyright law: 

The typical barrier to innovation
106E. Innovation.
(1) It is not an infringement of the rights conferred by this Part if the owner or lawful user of a work (the initial work) derives from it an innovative work.
(2) An innovative work is an original work which is substantially different from the initial work, or which is a substantial transformation of the initial work.
(3) The innovative work must not—
(a) conflict with the normal exploitation of the initial work, or
(b) unreasonably prejudice the legitimate interests of the owner of the rights in the initial work.
(4) Unless it is unreasonable or impractical to do so
(a) the innovative work must be accompanied by a sufficient acknowledgement, and
(b) within a reasonable time of the date on which the innovative work is first made available to the public in the State, the author of the innovative work must inform the owner of the rights in the initial work about the availability of the innovative work.
(5) Subsection (1) shall not apply if—
(a) the initial work is an infringing copy, and
(b) the person making the innovative work did not have reasonable grounds to believe that the initial work was not an infringing copy.
(6) Subsection (1) shall not apply if, or to the extent that, the owner of the rights in the initial work can establish by clear and convincing evidence that, within a reasonable time after first publication of the work, he or she had embarked upon a process to derive from it a work to which the innovative work is substantially similar.
(7) This section shall come into operation on such day as may be fixed by order made by the Minister.

When reading this draft exception, the immediate thoughts of this Kat went to pending CJEU reference (also acknowledged in the Report) in CaseC-419/13 Art & Allposters International (here), a request for a preliminary ruling concerning the right of distribution, its exhaustion and transformative use. Overall, it would appear premature to say that the InfoSoc Directive leaves carte blanche to Member States to introduce their own "innovation exceptions", also because - among other things - the InfoSoc Directive does not really provide a specific UGC exception.

While finding the proposed exception a good idea, there might be other problems with current drafting.

Firstly, as also noted in some responses to the public consultation, one may wonder whether speaking of 'substantiality' in relation to reproduction is a smart move these days, especially following the Infopaq string of cases. As also (or should one say 'even'?) recalled by Proudman J in the Meltwater decision, Article 2 of the InfoSoc Directive contains no reference to ‘substantial part’. According to the English judge, in the Infopaq decision the CJEU clarified that “originality rather than substantiality is the test to be applied to the part extracted. As a matter of principle this is now the only real test.
Possibly the most useful
transformation ever

Secondly, the three-step-test. Where is reference to 'special cases' in the proposed draft exception? Can a general transformative use exception be considered a special case?

Thirdly, something which is probably symptomatic of this Kat's continental copyright legacy: moral rights, in particular the right of integrity. Section 109(1) of the Irish Copyright Act provides for the waivable but non-assignable or alienable right of the author "to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would prejudice his or her reputation and that right shall also apply in relation to an adaptation of the work." Should Ireland decide to adopt its own innovation exception, then also Section 110 of the Act ('Exceptions to integrity right') should be amended accordingly.


What do readers think of the proposed Irish innovation exception? Would they welcome consideration also by other Member States or the EU itself when revising the InfoSoc Directive?
Modernising (Irish) Copyright Katseries #1: The Innovation Exception Modernising (Irish) Copyright Katseries #1: The Innovation Exception Reviewed by Eleonora Rosati on Thursday, October 31, 2013 Rating: 5


  1. "(1) It is not an infringement of the rights conferred by this Part if the owner or lawful user of a work (the initial work) derives from it an innovative work."

    Any idea what the definition of lawful user is here?

  2. I'm intrigued by subsection (5). If a person makes an "innovative work" from a musical recording or a video, which I assume this subsection is most directed at, will they have to produce a receipt to show that they bought their copy of the original instead of filesharing it?

  3. Another interesting twist might be the case of an image taken under a presumed licence to copy (vide Meltwater III) from a website where the image is lawfully being made available to the public. The person would then technically be able to hold (for instance on their hard drive) a lawful copy for the purposes of private study under current UK and Irish law, but under UK law (s 29) this copying would not be permissible if it was for commercial purposes, whereas current Irish law (s 50) appears not to preclude this.

  4. On a separate topic, although I have not yet read the report in its entirety, a superficial scan indicates that the Committee seem to have completely ducked paragraph 4 of their Terms of Reference.
    This is a shame since that would have provided them the opportunity to propose to the EU a solution to the anomalies which Eleonora has pointed out over substantiality - the opportunity to 'put right' the fairly restrictive definition which came out the Infopaq cases - and the matter raised in the Art & Allposters reference.

  5. If an initial work is something that is freely accessible (as in can be found on the web), what then?

    The person making the new work is not likely to be the same person who made the initial work so available, and is not likely to be able to tell if that initial work is rightfully available.

    The term that comes to my mind is "void for vagueness," although that is not quite the right term. What is "reasonable grounds?" Most average people really do believe that anything on the internet is there for the taking. Is this typical view "reasonable?" Is it UNreasonable to disagree with the vast majority?

    I think a better and more straight forward approach would be to simply state that derivative works are no longer covered by the copyright protection.


    That may be more difficult to swallow, but it is what is actually being attempted.

  6. ¿Lawful user of a work ?

    OK, if they want to destroy copyright, they should just try to revoke the law.

    Oh wait, this is just more subtle. Let´s create an exception that just dilutes the whole system.

  7. To do away with derivative rights will have a stunting effect on the creative ecology. The assumption is that derivative works tend to be based on big successful works while overlooking the impact such a change will have on fledgling efforts. It would seem likely that such a chance would herald the creation of rapid response creative enterprises that pounce on and hijack any work that shows any promise. This will obscure and constrain the commitment of creators of work because they will not be rewarded or supported for their effort. Creators of interesting and innovative work will remain obscured and unpaid amateur creators while their work supports professional knock off hacks with well established access to market and speedy production times - but what do I know, I have only created a single fictional celebrity cat.

  8. optimise the balance between protecting creativity and promoting and facilitating innovation.

    The nature of this statement evidences a bias, in that it would seem the authors believe that protecting creativity is on the opposite side of the fulcrum of promoting and facilitating innovation.

    Copying is not innovation.

    Thus, this bias seems out of place, and the notion of protecting creativity should be seen as being on the same side of the fulcrum (no such ‘balancing’ is even possible).

    As to 106E(1), I would join Golden’s questioning of what does “lawful user” mean, given the push to expand Fair Use…?

    106E(6) seems problematic – allocating a next-step creativity right for mere “embarking upon” seems to be an odd step given that most IP laws seek to create a race to share with the governing body and promote the exchange of protection under law for sharing of the work. This smacks of not doing so, but instead providing a buffer and retarding of actual derivative (non-copying) creativity.

    Continentally, moral rights is an interesting angle (and well noted), as this aspect is notably absent from this advocate’s “New World” upbringing (and if one wants to adopt the “New World” Fair Use jurisprudence, one needs to recognize that such jurisprudence is heavily influenced by this lack of moral right protection – you cannot attempt to have both and reach the same end result.


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