A copyright council must be a public body, funded by public money
Creators and consensus: detail of the shrine of the Cathach, which is the oldest extant Irish illuminated manuscript and the earliest example of Irish writing. It is traditionally accepted as the psalter which St Columba copied from St Finian. This led to King Diarmaid’s famous judgment in favour of St Finian – “To every cow, its calf; to every book, its copy”; to the Battle of Cúl Dreimhne in 561; and to St Columba’s exile in Scotland. Photograph: National Museum of Ireland
It may well be that the most important cultural document published this year is the rather dry 178-page report of the Copyright Review Committee. It was established in 2011 by Minister for Jobs, Enterprise and Innovation Richard Bruton. This is significant in itself: that copyright was assumed to be primarily an economic rather than a cultural question. Much of the impetus for change in copyright law has come from vast global corporations that hate the idea that they cannot do what they want with other people’s creations.
The committee’s terms of reference could have been drafted by corporate lobbyists. It was instructed to “examine the present national copyright legislation and identify any areas that are perceived to create barriers to innovation” and to “identify solutions for removing these barriers”.
Talk about begging the question. The working assumption is that protecting artists and creators is bad for innovation. Or, to put it another way, that protecting innovators harms innovation. This absurdity makes a kind of sense only if you define “innovators” in a way that includes Google but excludes writers, visual artists, film directors, architects and composers.
In this context the report is not nearly as bad as it might be, and it has some very welcome provisions, such as fast tracks for intellectual-property cases in district and circuit courts.
But at its heart is a very dubious proposition. Everything is to hinge on the establishment of a new body: a 13-member, broadly based Copyright Council of Ireland will make policy, hold the arena and set the rules, ideally by consensus. There is, so far as I know, no precedent anywhere for this kind of body being given effective control over a whole area of national law. The report calls it “an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures”. The last two parts of this definition – statutory recognition – seem, in principle, uncontroversial. But the first two need a lot of teasing out.
What does it mean to be both independent and self-funding? What is the “self” referred to here? There are, very broadly, three separate interests involved: the creators who hold copyright; the corporations and opportunists who want to breach, dilute or simply steal that copyright; and the public interest. This last category is itself broad, but it covers a very important range of noncommercial users: museums and galleries that want to display work digitally; libraries that want to lend it out; educational institutions that want to use it for teaching and research; and artists who want to parody works that are in copyright.
Do all of these diverse and competing interests form what the report calls, in the singular, the “Irish copyright community”? Which of them is in the best position to put money into a “self-funding” council? Or, to put it more sceptically, which part of the imagined “copyright community” calls the tune? Is it feasible to imagine that a corporation such as Google, with its gazillions of dollars, will have the same voice in a “self-funding” organisation as individual artists, most of whom live close to or under the poverty line? Money talks in a body that generates its own funds.
What the report envisages is that the council would be a kind of membership organisation funded by subscriptions. It acknowledges that these subscriptions would have to be highly graduated: “For example, an individual photographer should not have to pay the same fee as a large multinational corporation, and these kinds of differences should be reflected in the categories of membership and fees charged.”
The problem is that the large multinational corporation thus ends up with a far bigger stake in the enterprise than the individual artist. The report also envisages the council receiving “gifts and donations”. Again, it begs the questions of who is best placed to bestow gifts and whether it is appropriate for a statutory body to be partially funded by private donations.
The report is well intentioned and more balanced than its terms of reference suggest. But this central provision seems both naive and politically expedient. It is naive because it relies on a rather utopian concept of a “copyright community” to brush aside very real conflicts of interest and imbalances of power. And it is politically expedient because it pushes all the key policy questions out of the arena of government and parliament and on to a strange body with an imaginary power to produce consensus.
If there is to be a copyright council, it needs to be a proper public body, with public funding. And it needs to start by recognising that artists’ rights to their work are not barriers to innovation but preconditions for the freedom in which innovation thrives.