COPYRIGHT AND DIGITAL RIGHTS management affects us in nearly every facet of our lives. The Irish government is considering changes to the way copyright is defined and enforced.
On the heels of flicking through an 180 page report, several lingering questions arose. I extracted those questions from the PDF file because I believe they deserve a considered response from my position as a third level educator and advocate of the knowledge society. I plan to make a response directly to the Irish Minister Sean Sherlock, taking my cue from several of the questions below. I also plan to send him Siva's book (at left).
1. Is our broad focus upon the economic and technological aspects of entrepreneurship and innovation the right one for this Review?
2. Is there sufficient clarity about the basic principles of Irish copyright law in CRRA and EUCD?
3. Should any amendments to CRRA arising out of this Review be included in a single piece of legislation consolidating all of the post-2000 amendments to CRRA?
4. Is the classification of the submissions into six categories – (i) rights-holders; (ii) collection societies; (iii) intermediaries; (iv) users; (v) entrepreneurs; and (vi) heritage institutions – appropriate?
5. In particular, is this classification unnecessarily over-inclusive, or is there another category or interest where copyright and innovation intersect?
6. What is the proper balance to be struck between the categories from the perspective of encouraging innovation?
7. Should a Copyright Council of Ireland (Council) be established?
8. If so, should it be an entirely private entity, or should it be recognised in some way by the State, or should it be a public body?
9. Should its subscribing membership be rights-holders and collecting societies; or should it be more broadly-based, extending to the full Irish copyright community?
10. What should the composition of its Board be?
11. What should its principal objects and its primary functions be?
12. How should it be funded?
13. Should the Council include the establishment of an Irish Digital Copyright Exchange (Exchange)?
14. What other practical and legislative changes are necessary to Irish copyright licensing under CRRA?
15. Should the Council include the establishment of a Copyright Alternative Dispute Resolution Service (ADR Service)?
16. How much of this Council/Exchange/ADR Service architecture should be legislatively prescribed?
17. Given the wide range of intellectual property functions exercised by the Controller, should that office be renamed, and what should the powers of that office be?
18. Should the statutory licence in section 38 CRRA be amended to cover categories of work other than “sound recordings”?
19. Furthermore, what should the inter-relationship between the Controller and the ADR Service be?
20. Should there be a small claims copyright (or even intellectual property) jurisdiction in the District Court, and what legislative changes would be necessary to bring this about?
21. Should there be a specialist copyright (or even intellectual property) jurisdiction in the Circuit Court, and what legislative changes would be necessary to bring this about?
22. Whatever the answer to the previous questions, what reforms are necessary to encourage routine copyright claims to be brought in the Circuit Court, and what legislative changes would be necessary to bring this about?
23. Is there any economic evidence that the basic structures of current Irish copyright law fail to get the balance right as between the monopoly afforded to rights-holders and the public interest in diversity?
24. Is there, in particular, any evidence on how current Irish copyright law in fact encourages or discourages innovation and on how changes could encourage innovation?
25. Is there, more specifically, any evidence that copyright law either over- or under- compensates rights holders, especially in the digital environment, thereby stifling innovation either way?
26. From the perspective of innovation, should the definition of “originality” be amended to protect only works which are the author’s own intellectual creation?
27. Should the sound track accompanying a film be treated as part of that film?
28. Should section 24(1) CRRA be amended to remove an unintended perpetual copyright in certain unpublished works?
29. Should the definition of “broadcast” in section 2 CRRA (as amended by section 183(a) of the Broadcasting Act, 2009) be amended to become platform-neutral?
30. Are any other changes necessary to make CRRA platform-neutral, medium-neutral or technology-neutral?
31. Should sections 103 and 251 CRRA be retained in their current form, confined only to cable operators in the strict sense, extended to web-based streaming services, or amended in some other way?
32. Is there any evidence that it is necessary to modify remedies (such as by extending criminal sanctions or graduating civil sanctions) to support innovation?
33. Is there any evidence that strengthening the provisions relating to technological protection measures and rights management information would have a net beneficial effect on innovation?
34. How can infringements of copyright in photographs be prevented in the first place and properly remedied if they occur?
35. Should the special position for photographs in section 51(2) CRRA be retained?
36. If so, should a similar exemption for photographs be provided for in any new copyright exceptions which might be introduced into Irish law on foot of the present Review?
37. Is it to Ireland’s economic advantage that it does not have a system of private copying levies; and, if not, should such a system be introduced?
38. If the copyright community does not establish a Council, or if it is not to be in a position to resolve issues relating to copyright licensing and collecting societies, what other practical mechanisms might resolve those issues?
39. Are there any issues relating to copyright licensing and collecting societies which were not addressed in chapter 2 but which can be resolved by amendments to CRRA?
40. Has the case for the caching, hosting and conduit immunities been strengthened or weakened by technological advances, including in particular the emerging architecture of the mobile internet?
41. If there is a case for such immunities, has technology developed to such an extent that other technological processes should qualify for similar immunities?
42. If there is a case for such immunities, to which remedies should the immunities provide defences?
43. Does the definition of intermediary (a provider of a “relevant service”, as defined in section 2 of the E-Commerce Regulations, and referring to a definition in an earlier - 1998 - Directive) capture the full range of modern intermediaries, and is it sufficiently technology-neutral to be reasonably future-proof?
44. If the answers to these questions should lead to possible amendments to the CRRA, are they required or precluded by the ECommerce Directive, EUCD, or some other applicable principle of EU law?
45. Is there any good reason why a link to copyright material, of itself and without more, ought to constitute either a primary or a secondary infringement of that copyright?
46. If not, should Irish law provide that linking, of itself and without more, does not constitute an infringement of copyright?
47. If so, should it be a stand-alone provision, or should it be an immunity alongside the existing conduit, caching and hosting exceptions?
48. Does copyright law inhibit the work of innovation intermediaries?
49. Should there be an exception for photographs in any revised and expanded section 51(2) CRRA?
50. Is there a case that there would be a net gain in innovation if the marshalling of news and other content were not to be an infringement of copyright?
51. If so, what is the best blend of responses to the questions raised about the compatibility of marshalling of content with copyright law?
52. In particular, should Irish law provide for a specific marshalling immunity alongside the existing conduit, caching and hosting exceptions?
53. If so, what exactly should it provide?
54. Does copyright law pose other problems for intermediaries’ emerging business models?
55. Should the definition of “fair dealing” in section 50(4) and section 221(2) CRRA be amended by replacing “means” with “includes”?
56. Should all of the exceptions permitted by EUCD be incorporated into Irish law, including:
56a. reproduction on paper for private use
56b. reproduction for format-shifting or backing-up for private use
56c. reproduction or communication for the sole purpose of illustration for education, teaching or scientific research
56d. reproduction for persons with disabilities
56e. reporting administrative, parliamentary or judicial proceedings
56f. religious or official celebrations
56g. advertising the exhibition or sale of artistic works,
56h. demonstration or repair of equipment, and
56i. fair dealing for the purposes of caricature, parody, pastiche, or satire, or for similar purposes?
57. Should CRRA references to “research and private study” be extended to include “education”?
58. Should the education exceptions extend to the (a) provision of distance learning, and the (b) utilisation of work available through the internet?
59. Should broadcasters be able to permit archival recordings to be done by other persons acting on the broadcasters’ behalf?
60. Should the exceptions for social institutions be repealed, retained or extended?
61. Should there be a specific exception for non-commercial usergenerated content?
62. Should section 2(10) be strengthened by rendering void any term or condition in an agreement which purports to prohibit or restrict than an act permitted by CRRA?
63. When, if ever, is innovation a sufficient public policy to require that works that might otherwise be protected by copyright nevertheless not achieve copyright protection at all so as to be readily available to the public?
64. When, if ever, is innovation a sufficient public policy to require that there should nevertheless be exceptions for certain uses, even where works are protected by copyright?
65. When, if ever, is innovation a sufficient public policy to require that copyright-protected works should be made available by means of compulsory licences?
66. Should there be a specialist copyright exception for innovation? In particular, are there examples of business models which could take advantage of any such exception?
67. Should there be an exception permitting format-shifting for archival purposes for heritage institutions?
68. Should the occasions in section 66(1) CRRA on which a librarian or archivist may make a copy of a work in the permanent collection without infringing any copyright in the work be extended to permit publication of such a copy in a catalogue relating to an exhibition?
69. Should the fair dealing provisions of CRRA be extended to permit the display on dedicated terminals of reproductions of works in the permanent collection of a heritage institution?
70. Should the fair dealing provisions of CRRA be extended to permit the brief and limited display of a reproduction of an artistic work during a public lecture in a heritage institution?
71. How, if at all, should legal deposit obligations extend to digital publications?
72. Would the good offices of a Copyright Council be sufficient to move towards a resolution of the difficult orphan works issue, or is there something more that can and should be done from a legislative perspective?
73. Should there be a presumption that where a physical work is donated or bequeathed, the copyright in that work passes with the physical work iself, unless the contrary is expressly stated?
74. Should there be exceptions to enable scientific and other researchers to use modern text and data mining techniques?
75. Should there be related exceptions to permit computer security assessments?
76. What is the experience of other countries in relation to the fair use doctrine and how is it relevant to Ireland?
77a. What EU law considerations apply?
77b. In particular, should the Irish government join with either the UK government or the Dutch government in lobbying at EU level, either for a new EUCD exception for non-consumptive uses or more broadly for a fair use doctrine?
78. How, if at all, can fair use, either in the abstract or in the draft section 48A CRRA above, encourage innovation?
79. How, in fact, does fair use, either in the abstract or in the draft section 48A CRRA above, either subvert the interests of rights holders or accommodate the interests of other parties?
80. How, in fact, does fair use, either in the abstract or in the draft section 48A CRRA above, amount either to an unclear (and thus unwelcome) doctrine or to a flexible (and thus welcome) one?
81. Is the ground covered by the fair use doctrine, either in the abstract or in the draft section 48A CRRA above, sufficiently covered by the CRRA and EUCD exceptions?
82. What empirical evidence and general policy considerations are there in favour of or against the introduction of a fair use doctrine?
83a. If a fair use doctrine is to be introduced into Irish law, what drafting considerations should underpin it?
83b. In particular, how appropriate is the draft section 48A tentatively outlined above?
84. Should the post-2000 amendments to CRRA which are still in force be consolidated into our proposed Bill?
85. Should sections 15 to 18 of the European Communities (Directive 2000/31/EC) Regulations, 2003 be consolidated into our proposed
Bill (at least insofar as they cover copyright matters)?
86. What have we missed?
Questions extracted from Copyright and Innovation A Consultation Paper prepared for the Irish Department of Jobs, Enterprise and Innovation, February 2012.
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Siva Vaidhyanathan -- "Copyrights and Copywrongs", 2003.
