Last week the Irish Copyright Review Committee published a Greenpaper that seeks to identify possible barriers to innovation in the Irish Copyright framework. Copyright For Creativity, which held an outreach event in Dublin in January to connect with Irish Copyright experts and policymakers, commends the members of the Review Committee for their work and welcomes the proposed changes to the Irish Copyright regime.

The Committee calls for the full incorporation of Art. 5 of the European Copyright Directive on Limitations and Exceptions into Irish law except where the existing Fair Dealing case law is more expansive. Similarly to Hargreaves, the report recommends the introduction of a Copyright Council, a Digital Copyright Exchange and a Copyright Alternative Dispute Resolution Service.

The authors further reject the notion that the common law heritage of fair use would make it inappropriate in civil law countries and conclude that Fair Use could be applied to Irish Law. However, the Review Committee has not yet received sufficient evidence of the need for its introduction to stimulate innovation.

Here is a short overview of the proposed actions in areas of specific interest to C4C:

Orphan Works

The Committee proposes that a newly formed Copyright Council would perform good offices to help resolve the Orphan Works problem. Such a Copyright Council would draft “codes of best practice on various issues” and propose “model agreements and clauses for collective and individual copyright licences” among other things. However, the Committee is aware that a non-binding solution might not be sufficient and asks for further input from libraries and archives on this proposal.

Format Shifting ( click here for a definition)

The Committee notes that in the absence of a clear statutory permission, heritage institutions are reluctant to undertake format-shifting that would help to preserve works. To address this lacuna the reports suggests the introduction of a new section into the Irish Copyright Act (CRRA) that in line with Article 5(2)(c) of the European Copyright Directive. In addition to that, the authors propose adding a new provision to the CRRA to extend the scope of format shifting for private use in line with with Article 5(2)(d) of the Copyright Directive.

User-Generated Content and Consumer Protection

The report suggests an additional provision to the CRRA to make it clear that user-generated content using copyrighted material (such as parody or fan fiction) is legal, provided it is non-commercial and does not have a substantial adverse effect on the exploitation of the existing work. In this context, the authors also want to strengthen consumer protections under section 2(10) of the CRRA to make sure that no limitations and exceptions listed in Copyright Act can be circumvented by private agreements between consumers and rights holders.

Innovation Exceptions

The authors stress the importance of L&Es for innovation and even consider the introduction of an “innovation exception” that would permit innovators to make use of certain copyrighted works. According to the draft provision put forward by the Committee, it would not be an infringement if the innovative work is substantially different from the original work, does not conflict with the normal exploitation of the initial work and does not unreasonably prejudice the interest of the rights holder (this is largely inspired by the Berne three-step test). As an example for the type of innovation this exception should help to facilitate, the report refers the use of quoted material by online search engines. The Committee points out that while case law indicates the quotation of even a few words constitutes infringement, it does “not conflict with the normal exploitation of the websites being quoted and linked to, or unreasonably prejudice the legitimate interests of the owners of those sites…”.

Next Steps

The Green Paper will inform a White Paper that will in turn make recommendations to the Irish Government in early summer. While the Review Committee is independent of the Government, strong signals have been given that it intends to act on the recommendations made. A public meeting on copyright and innovation will be held on Saturday 24 March 2012 and the closing date for submissions on the Consultation Paper will be Friday 13 April 2012.

Click here for the official announcement of the report by the Department of Jobs, Enterprise and Innovation.