Review aims to open up new digital creative space

The Copyright Review Committee is trying to take on board as many viewpoints as possible, writes KARLIN LILLINGTON

FOR BARRISTER and Trinity College Dublin law school lecturer Dr Eoin O’Dell, being appointed to chair what is perhaps the most significant reconsideration of Irish copyright law ever – a review that could have economic and cultural implications for decades to come – is more interesting than daunting.

“The most interesting thing has been reading the public submissions and seeing the diverse range of views,” says the academic, whose own work focuses on private and commercial law with a strong interest in internet law, digital rights and freedom of expression.

All of his areas of expertise are likely to be drawn together in this role, as the copyright review pivots on whether change is needed to promote innovation across the digital sector.

Several successive governments have highlighted digital businesses as an area for major growth in the economy. It’s a sector heavily wooed by IDA Ireland, and also promoted by Enterprise Ireland. But for years, this sector has been critical of Irish copyright law – legislation that was brought in at the turn of the century and which in many respects is seen as more flexible and well constructed than current British law.

However, from big multinationals such as Google on down to small indigenous start-ups and individual content creators such as musicians and artists, digital innovators think there’s plenty of room for improvement and argue that this would not only unleash greater national creativity, but would also help drive expansion in the economy. New industries would see Ireland as a good legal environment in which to do business, they say.

The move to reconsider Ireland’s copyright laws comes out of the current Government’s original programme for government. The issue was quickly put on the agenda after the election by Minister for Enterprise, Jobs and Innovation Richard Bruton, whose department formed the review committee chaired by O’Dell and announced it would seek submissions on the issue, with the intent of either issuing primary legislation or altering existing law.

The Copyright Review Committee will look at “how copyright limits digital developments and how we can change things to make it more encouraging and enabling of digital innovation. That means we can make recommendations to amend Irish law, but it has to fit within EU law. If it bumps up against EU law, then it’s going to become a matter of lobbying”.

As highlighted in a Law Society of Ireland half-day conference on copyright two weeks ago, reconsidering European copyright law is a live issue in Brussels.

“There’s an ongoing effort in the EU,” agrees O’Dell, who also chaired the Law Society event. “It’s not unthinkable that more will change on the EU level, and Ireland could be part of that.”

Joining him on the committee are two other experts in the area of copyright, Prof Stephen Hedley, University College Cork, and Patricia McGovern, DFMG Solicitors. “Steve brings a great grasp of international trends and debate, and Patricia has very broad expertise in the copyright area, so there’s a whole series of perspectives on the committee,” says O’Dell.

The terms of the review group mandated that there be a public consultative process, but it was O’Dell’s idea to create a micro-site within the department website to make the consultation submissions available to the public. It was also his idea to run an online information campaign at the start of the summer, and hold a public meeting to try to solicit as wide a range of submissions as possible. “The big players will know about this anyway. They monitor the department, and have their own lawyers. We wanted to reach everyone else, start-ups and so on, and we got a wide range of responses.”

About 100 individuals and organisations responded to the call for submissions, a figure that satisfies O’Dell.

“We had a very broad range of submissions, from those who took the view that the current system is working perfectly in every particular, and those that think the current system should be abolished – and submissions not just from the obvious guys. We heard from academics, start-ups, interested technical people, and quite a few from abroad.”

He also says that he is happy that the viewpoints of digital rights advocates have been taken on board. “Very often, digital rights advocates are brought late to the table or discover very late in the day that something is happening [and] the person on the street isn’t aware of the process until it is over. We wanted to reach those people.”

The submissions reflect the interests and concerns of the whole panoply of players across many digital industries, he says.

“There are submissions from the rights holders, who were concerned to protect copyright; from the intermediaries – the people like Google who are the gateways to the internet – and from the users, the SMEs and entrepreneurs and those trying to do interesting, creative things and who want to consider new business methods, new businesses, and new applications.

“The aim of the committee is to look at all of those interests and try to encourage digital innovation.” But that is not easy when, as O’Dell argues, we’re in the middle of a turbulent transition phase between a pre-internet business climate less than two decades ago, and an evolving digital frontier.

“The business landscape will change. We are evolving, and there are certain evolutionary pressures – we’re just not sure what the likely outcome will be. One of the things the Minister wants to do is position Ireland to take the best advantage of this process of evolution.”

A major part of the department’s reconsideration of copyright, and an element expressly highlighted in the terms of reference for the committee, is to closely examine whether Ireland would benefit from an explicit doctrine of “fair use”, an idea that comes from the US and is embedded in the US constitution (and which few other countries currently have – Israel, another digital innovator country, is one).

“We will consider whether fair use is feasible, and then whether it is desirable,” says O’Dell. “It was easily the most controversial element in the public meeting and is easily the issue that attracted the widest range of submissions.”

The next part of the process is for the committee to summarise the submissions in a consultation paper, after which there will be a second round of consultation and a second public meeting, “and we hope some interesting online debate as well”.

A final report will then be issued, and the Government will make the decision on where to go from there.