Solomon would find it hard to bring clarity on copyright


ANALYSIS:Not everyone wants “barriers to innovation” removed by the review group on copyright law

CREATION VERSUS innovation is how the battle lines are being roughly drawn in the Government’s review of copyright law. And if the lines seem fuzzy, then that’s because they are. The Copyright Review Committee, set up by Minister for Enterprise Richard Bruton in May, says it will bring legal clarity to a sector of business partially clouded by differences in how copyright legislation is interpreted. That’s not all it is doing. Its terms of reference command it to “identify any areas that are perceived to create barriers to innovation” and then work out how to remove them.

Not everyone wants them removed. Yesterday, the committee held a public meeting in Trinity College, Dublin, at which the chasm between the views of the panel and those of many in the audience was so wide it could have been stuffed with the iTunes libraries of everyone present and still found space for the entire Netflix catalogue and the complete works of News International.

The panel was in favour of those who would benefit from a change to the existing provisions, while representatives of bodies such as the Irish Recorded Music Association, the National Newspapers of Ireland and the Irish Film Board sat in the audience, absorbing how removing “barriers to innovation” might come at their expense.

Two “barrier” cases were cited by TJ McIntyre, chairman of Digital Rights Ireland and a lecturer in law at UCD.

Say, for example, the proprietor of a price comparison website wants to visit a major online retailer and compare its price to similar products elsewhere. It can be claimed that taking that information and reusing it would constitute a breach of the terms of use of the retailer’s site, because the site, it is argued, constitutes a database.

“I personally don’t believe that most of these claims are valid. But that’s not a consolation when you’re a small start-up,” says McIntyre.

The short life of Fusio’s Dublin Bikes app (an internet application that allows the user download information onto their smartphone) provides another reason for reviewing existing legislation, McIntyre added. When the Dublin Bikes scheme launched in 2009, Fusio developed a free app with a map of the bike station locations and information on whether there were available bikes, using data gleaned from the site of operator, JC Decaux. A legal letter from JC Decaux asserting its database rights saw Fusio pull the app.

McIntyre warned of the dangers of such “quasi intellectual property rights” to the Irish economy. “We’ve been successful in attracting large businesses such as Facebook, Google and eBay to set up here, but we’re predominantly getting the back-office functions.” Google’s search functions remain securely in Mountainview, California.

Meanwhile, Brian Fallon, founder of publisher Distilled Media, claimed social bookmarking sites such as Digg, Delicious and Reddit could not be incorporated in the State, because they would be in breach of copyright legislation. Fallon wants to be able to use feed-merging techniques used by niche content providers such as Business Insider and Bleacher Report.

“Yet if we really want to pursue them properly, we would have to locate in the US.”

As Fallon and founder David Cochrane discussed how current legal uncertainties hindered the operations of their websites, it seemed like some freelance writers and photographers in the lecture hall were feeling their intellectual property rights drain away from them, right there and then.

Photographer Barbara Lindberg responded eloquently by detailing her experience risking her safety and her equipment when taking pictures of violence at the Smithfield horse fair in March. Lindberg licensed her photographs to Irish newspapers on condition that they not be used online. They found their way there anyway and were reused by aggregator sites and social media users, sometimes with added racist captions. “I am a content creator, not an aggregator. When I go out on a job, I have a minimum of €15,000 worth of gear on my backpack,” said Lindberg.

Central to the review is the idea that Ireland should move from “fair dealing” in the treatment of copyrighted works – which is standard in Europe and allows specific actions such as the transfer of music from CD to MP3 – to the US doctrine of “fair use”. Critics such as Lindberg argue “there is nothing fair about fair use”, though McIntyre claims it is “not the bogeyman”. In practice, corporations such as Google have become confident in their ability to cite the “fair use” defence in US courts, meaning a switch could result in more heartache for copyright holders.

The case of the comparison website owner who wants to take a price from Amazon without fear of breaking the law just isn’t the same as that of the multiple websites that republish Lindberg’s Smithfield photographs without permission, and it seems silly to shroud a piece of data, such as the price of a product, in the same protection as you would a professionally created piece of cultural content such as a photograph.

Yet the language of the Government’s copyright review so far suggests it is the rights of the price comparison website owner that will be enhanced, while those of the photographer and the creative industries may simply be outside the terms of reference.

“Copyright is not a barrier,” noted Frank Cullen, National Newspapers of Ireland co-ordinating director. “I’m not sure where that thought came from.”

The closing date for submissions to the Department of Enterprise, Jobs and Innovation’s review is July 14th

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