Copyright reform better resolved at European level

Internationally, traditional concepts of copyright are in crisis. Rights holders believe they have been left defenceless against digital piracy; and content creators such as authors and composers see their incomes disappearing as traditional business models collapse. Meanwhile, many digital users argue that the fact that existing copyright law is being so widely flouted merely reflects the fact that the current legislative structure is outmoded and unfit for purpose.

This afternoon at the Royal Irish Academy in Dublin, Eoin O’Dell will formally present the report of the Copyright Review Committee that he has chaired for the last 2½ years. The report, which was published in full some weeks ago, is the culmination of a lengthy process undertaken by Dr O’Dell and his colleagues on the committee, who were tasked in May 2011 by Minister for Jobs, Enterprise and Innovation Richard Bruton with recommending changes and reforms in existing legislation in order to “remove barriers to innovation” – wording that has been seen from the outset in some quarters as loaded towards a particular preferred outcome.

In the course of its work, the committee sought submissions from interested parties on all sides of what is an increasingly fractious debate about the purposes and limitations of copyright law in the digital age. It’s a debate that runs parallel to, and sometimes intersects with, other controversial issues such as data privacy, defamation and the limits of free speech in an era when technological innovation has irreversibly disrupted traditional ground rules around publishing, broadcasting and other modes of production and distribution.

Draft Bill
The final report summarises the various stakeholders' positions, and offers proposed wording for a draft Bill to implement copyright reform. These proposals include the establishment of a self-funded copyright council to educate, advise and provide a voluntary dispute resolution service, along with the establishment of a dedicated specialist IP court at Circuit Court level.

Inevitably, perhaps, the consultation process ended up broadly dividing into two opposing camps: on the one hand, the "traditional" content-creating industries such as book publishers, newspapers and record companies. On the other, companies such as Google, whose business model is based not on creating content but on what the final report calls the "marshalling" of existing content around the web.

Many of the committee’s proposals make perfect sense. A controversy arose earlier this year, for example, relating to people’s right to link to Irish newspaper websites. The committee’s report correctly characterises links as the fundamental binding which underpins the entire online world, and recommends that linking should not infringe copyright.

Unfortunately, though, it goes on to recommend that such links may be accompanied by an extract, “where the text extract is no more than 2½ per cent of the total number of words in the work, or no more than 160 characters and no more than 40 words”. No rationale is given for these measurements.

Anyone familiar with modern content aggregators will recognise the scope which that generous 40-word limit allows for exploitation of previously copyrighted content such as newspaper articles, and will note how far it diverges from the limits now emerging in other European countries.

Furthermore, and unlike the German legislation upon which the committee says it has modelled its approach, the draft Bill does not involve a statement that reproduction of more than the permitted extracts will constitute an infringement of copyright. This allows for a situation where those reproducing more than the permitted extract of text could look to justify that by reference to the various other exceptions which the committee is recommending should now be introduced.

Fair use
These exceptions are so numerous, and in many cases so vaguely defined, that rights holders will inevitably find themselves in an invidious position. The "fair use" exception, in particular, should set off alarm bells, and not just because the committee ties itself into double-negative knots when it acknowledges that it is recommending the introduction of the exception "not without misgivings", describing it as not "necessarily incompatible with EU law". It seems unwise to introduce an amendment which the committee itself appears to acknowledge could contravene European legislation.

Ill-defined exceptions
The loosening of copyright through the introduction of a broad range of ill-defined exceptions will inevitably lead to uncertainty and lack of clarity in our copyright legislation.

Worryingly, the draft also proposes that the Minister for Enterprise may make regulations to prescribe what constitutes fair use in particular cases. No explanation is given for this provision, which gives the Minister the ability to override the interpretation taken by the courts so as to impose his or her own view.

In this, and in several other respects, the committee’s recommendations go further than what has been identified to date by European law and could well put us in a position where Irish law is in conflict with European developments.

For the last number of years, there has been ongoing discussion and debate across Europe regarding copyright in the digital world. Most of the issues considered by the Copyright Review Committee in the report have been part of that debate. It makes little sense for an Irish Government to introduce legislation which makes drastic changes to copyright protection right now, when precisely those issues are under review in the European context.

While Dr O’Dell and his committee have made an important and useful contribution, it would be much wiser to engage with and act upon the report in the context of outcomes and clarifications arising from that broader European debate and review.

Hugh Linehan is Digital Development Director