The following essay was submitted as part of my Digital Publishing & Editing (DPE) module. It looks at the recommendations of the Modernising Copyright Report which was commissioned in 2011, and provides analysis of the recommendations in the light of the 2019 EU Copyright Directive, which was transposed in to Irish law in November 2021.
In 2011 the Copyright Review Committee was established by the then Minister for Jobs, Enterprise and Innovation; in 2021, a decade on from the establishment of the committee, I propose to examine the legacy of their report Modernising Copyright (2013). I will begin by giving some background to Irish copyright legislation as it stands in 2021. I will then give a brief overview of the main recommendations from the Modernising Copyright Report (MCR), the reasoning behind it, the issues that it hoped to address, and to what extent each recommendation has been acted upon. I will examine in greater depth, with further reference to theEU’s Copyright in the Digital Single Market Directive (CDSM, 2019) and Ireland’s Copyright and Other Intellectual Property Law Provisions Act (2019), the Fair Dealing exceptions which are of particular relevance to publishing and the digital humanities.
The Copyright Review Committee was established in 2011 with the stated purpose of making recommendations to ‘optimise the balance between protecting creativity and promoting and facilitating innovation’…[and]… ‘to examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context’ (MCR, p8). The committee comprised three members working on a pro bono basis: TCD professor Dr Eoin O’Dell, Patricia McGovern of DFMG Solicitors and Professor Steve Hedley from UCC, and following two years of public consultation the committee’s report was published as the Modernising Copyright Report (MCR) in 2013.
The legislation in force at the time the report was written was the Copyright & Related Rights Act, 2000 and Ireland was also subject to a number of EU copyright Directives. The cornerstone EU copyright Directive InfoSoc (also known simply as the Copyright Directive) was issued in 2001 but many other EU Directives would have informed the review including: Resell Rights (2001), Lending (2006), Computer Programmes (2009) and Orphan Works (2012). The EU relies on Directives to harmonise copyright law in the member states – no EU copyright Regulation (i.e. binding legislation) has ever been enforced on member states – and many differences still exist between countries.
The main recommendations of the Modernising Copyright Report were:
- Establish an Irish Copyright Council and Digital Copyright Exchange
- Establish Alternative Dispute Resolution and Specialist Courts
- Provide a structure to review the report’s progress after enactment of proposed legislation
- Provide clear legislation for photographic metadata
- Legislate the linking of data
- Expand and clarify a range of exceptions regarding Fair Dealing (Fair Use)
2019 was a very significant year for copyright in Ireland for two reasons, firstly the EU published its most comprehensive overhaul of copyright to date the Copyright in the Digital Single Market Directive (CDSM, 2019), whilst in parallel the Open Data (2019) Directive was issued. Secondly, the Irish government finally implemented many of the recommendations of the MCR, incorporating some of the recommendations from CDSM, as the Copyright and Other Intellectual Property Law Provisions Act, 2019. Whilst InfoSoc is the key copyright Directive, and harmonised reproduction and communication rights across the member states, the majority of exceptions that it allowed (i.e. educational use etc.) were optional; in addition it did not legislate for many of the then-unknown technological developments that were taking place in the digital realm. The objective of CDSM was two-fold – it sought to ‘ensure that new types of uses brought in by new practices and new technologies available are covered by up-to-date exceptions and limitations’ and also to ‘harmonise exceptions – to ensure that cross-border uses, such as the ones that take place in the digital environment, can take place’ (Matas, 2021).
- Establish an Irish Copyright Council
A central recommendation of the MCR was the establishment of a Copyright Council of Ireland. This council would be charged with supporting the further reform of copyright, and copyright legislation in Ireland. It would also recommend, implement and oversee best practice in the area, and would educate the public about copyright issues. It was envisaged that the establishment of such a body would ‘encourage transparency and dialogue amongst all stakeholders in the copyright debate’ (MCR, p16).
While the government went some of the way with this proposal it did not establish a Copyright Council per se. Instead it took on board the MCR’s recommendation that ‘Patents Office’ be officially renamed as the ‘Intellectual Property Office of Ireland’ (IPOI, 2021) and it’s remit was significantly widened to encompass Patents, Trade Marks, Designs and Copyright – this took place in 2019. While the IPOI website does provide a portal and a central set of resources for all copyright related matter, it falls short of the MCR’s recommendations in some regards. As an office of the Department of Business, Enterprise and Innovation, the IPOI does not provide independent oversight for copyright related issues, nor does it appear to have a proactive remit to raise awareness or make recommendations. It would seem that the Irish government has made a conscious effort to allow Copyright policy to be developed and implemented at EU, rather than at national, level. The IPOI website has yet to be updated to include the contents of the CDSM Directive, but as this has only recently (November 21st, 2012) been signed into Irish law it is likely that this will happen in the near future.
Under the aegis of the Copyright Council of Ireland, the MCR made recommendations that two agencies be established: to facilitate Digital Copyright Exchange; and also the licencing of Orphan Works (i.e. works that are still in copyright, but for whom the rights holders are unknown) and Out of Commerce works (i.e. works that are still in copyright, but are not commercially available). In both areas the Irish government has looked to the EU for solutions – in the case of Orphan Works the EU has recently established (via it’s own IP Office) the Out of Commerce Works Portal. As their website states: ‘European cultural heritage institutions, such as libraries, archives and museums, hold millions of out-of-commerce works in their collections…[which]…hold great cultural, scientific, educational and historical value. The Out-of-Commerce Works Portal has been set up to help ensure that all the information about the use of out-of-commerce works and details about the rights holders’ opt-outs is adequately publicised and available in a single publicly accessible online portal’. This portal will serve all EU states by allowing member organisations to upload information on works that they identify as OoC to a centralised database. This is particularly important as Cultural Heritage Institution’s will now be able to undertake mass digitation projects which have not previously been possible due to legal obstructions imposed by onerous rights clearance costs.
- Alternative Dispute Resolution and Specialist Courts
The MCR provided some draft legislation in the form of District Court (Small Claims) (Intellectual Property) Rules, 2013. The purpose for this was to allow for lower value infringement claims to be processed at District Court level. This was enacted as part of the 2019 Irish legislation, which also saw IP licensees being afforded the same rights as IP right holders. A specialist IP court has yet to be established, and claims in excess of €75,000 must continue to be brought before the Commercial Court (part of the High Court), however this is still a significant win for those wishing to avoid the much greater costs associated with High Court actions. The alternative dispute resolution process, proposed as part of the remit of the Copyright Council of Ireland has not been established.
- Provide a structure to review the report’s progress five years after enactment of proposed legislation
The MCR was published in 2013, and included draft legislative provision in the form of a new amendment to the Copyright Act, 2000. This Copyright and Related Rights (Innovation) (Amendment) Bill, 2013 was never enacted but a number of its recommendations were later implemented as part of 2019’s Copyright and Other Intellectual Property Law Provisions Act. The MCR proposed that a formal review of new legislation take place five years after enactment, as per similar legislative review periods across government departments. To date there has been no commitment from government to provide for a formal review process of this legislation.
- Provide clear legislation for photographic metadata
The report recommended ‘explicit protection for digital watermarks and other metadata applied to photographs’ (MCR, p11). And that not only should copyright extend to metadata, but also that the removal of such metadata was an infringement of copyright. The born-digital nature of much modern photography made the issue of copyright particularly pressing for photographers as EXIF data is embedded within the image file. The easily acquired metadata associated with digital photos can give valuable information to those wishing to infringe copyright. Photographic metadata routinely discloses not just the ‘who’, ‘what’, and ‘when’ of a photograph but often also the ‘how’ by revealing EXIF data including shutter speeds, aperture, camera model/lense type etc. All of the recommendations were included in 2019’s Copyright and Other Intellectual Property Law Provisions Act.
- Legislate the linking of data & other recommendations
The MCR took a very clear stand on linking, in terms of the Internet, recommending that linking ‘should not infringe copyright’ (MCR, p.10). The report sought to ensure that providing a link to a website could never be construed as having breached copyright, except in cases where the person/organisation ‘knew or ought to have been aware’ (ibid) that the content linked to was an infringement. (It also created an exception to this, in cases where the infringed content being linked to was in the publish interest i.e. as part of a news item). The reasoning behind this recommendation was to clarify that the provision of a link does not in itself publish, reproduce or communicate the content to which it points. This recommendation was fully included in the2019 legislation.
The 2019 Copyright and Other Intellectual Property Law Provisions Act also brought into law the extending of the copyright in designs from 25 years to the more usual life of creator plus 70 years. And a ‘resetting’ of the clock on copyright in artistic works to ensure that it conformed to life plus 70 years, irrespective of the date on which the material entered the public domain, and to also include content that never entered the public domain (i.e. diaries etc.).
- Fair Dealing exceptions for Irish copyright
Fair Dealing (sometimes referred to as Fair Use) allows for the use of copyrighted material, without the express permission of the copyright holder, in limited circumstances. These circumstances are often referred to as ‘exceptions’. The MCR devoted an entire section to the terminology and definitions of Fair Use and Fair Dealing. I do not propose to go in to this in any great detail, suffice to say that as the CDSM was finally transposed in to Irish law on November 21st, 2021 many of the points have been addressed, as there was significant overlap between the MCR technical clarifications and those recommended by the 2019 CDSM.
The adoption of the CDSM has provided much needed clarity around copyright issues in the digital era. As outlined previously the objective of CDSM was two-fold to ‘ensure that new types of uses brought in by new practices and new technologies available are covered by up to date exceptions and limitations’ and to ‘harmonise exceptions – to ensure that cross-border uses, such as the ones that take place in the digital environment, can take place’ (Matas, 2021). There are a number of exceptions to copyright that it legislates for including in areas such as: education, research, data mining, criticism/reviews, caricatures/parodies and news reporting. It also make specific mention of facilitating access to copyrighted content for those with disabilities.
A new addition to the exceptions is for Text and Data Mining (TDM) the law now allows for individual researchers and Cultural Heritage Institutions (CHIs) who have access to data on the web, or from their universities or institutions, to interrogate that data without needing permission from the rights holders, for scientific purposes. The legislation copper-fastens this exception further by stating that the exception can’t be removed by ‘contract or technical protection measures’ (Matas, 2021) in other words copyright holders can’t use DRM to restrict access to their content for scientific research. This exception is further expanded to allow for TDM on materials regardless of purpose (i.e. not just for scientific research), although it is possible for rights holders to opt out of this clause. One huge benefit of this exception is that it will be possible for researchers to mine the collections of CHIs without permission from the rights holders, but the exception is clear that the material must have been lawfully obtained. For the purposes of TDM it allows for content to be duplicated or extracted (this will include digitisation, OCR, and speech-to-text), as well as stored and retained.
Another exception will allow for digital use (streaming, digital projection etc.) in educational settings. This will also cover the retention of content in OLEs, such as Canvas, that have sufficient security measures in place. Content can be uploaded and used for illustrative purposes without the rights holders’ permission.
The duplication of content in the ownership of CHIs for the purposes of preservation is now clearly legislated for, and it doesn’t put any limits on the quantity or format of the works being digitised – or indeed on the mechanisms used to create the digital copy. This also removes restrictions on the online display of visual works, in the public domain collections of CHIs (as long as the host site is non-commercial).
The CDSM also makes provision for an exception to allow for wider access to content, where content subject to copyright is inaccessible to a disabled person become of their disability. This removes an onus on disability organisations to obtain permission before altering content to facilitate/enable access for their members.
Lessig (2006) states that ‘[the Internet] frees innovation from the past. It’s an architecture that makes its hard for a legacy business to control how the market will evolve’. In the same way that the Internet has disrupted traditional commerce, it also disrupts traditional laws, including those in the area of copyright. In 2011 the Copyright Review Committee was tasked with the job of facilitating innovation and creativity by modernising Irish copyright law. The assertion that copyright law is ‘an insurmountable barrier that stops digital humanities from experimenting with new forms of scholarship’ (Wharton, 2013) can no longer be considered true. The recommendations of the MCR took over a decade to implement, and Ireland may have looked to Europe to lead the way, but I would assert that theEU’s Copyright in the Digital Single Market Directive (CDSM, 2019) and Ireland’s Copyright and Other Intellectual Property Law Provisions Act (2019) have finally rendered Irish copyright law Fit for Purpose.
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