Yesterday morning, I chaired a public meeting of the Copyright Review Committee (#CRC11). The Committee was set up in May to identify solutions for any aspects of the current copyright legislation that create barriers to innovation, and in particular to consider whether a US-style ‘fair use’ doctrine to see if it would be appropriate in an Irish or EU context. Today, I read a provocative criticism of the event by photographer Dominic Lee:

© Copyright Act Review by Dominic Lee

… While this was a “Review”, it quickly became clear to me that the committee’s agenda is to attempt to introduce “Fair Use” to the Copyright Act 2000. However, the term “Don’t Want to Pay” is more appropriate in each and every aspect of those in favour of this change.

… Media publications would never dream of publishing a painting by Graham Knuttel or an extract from a Maeve Binchy book without asking their permission first but many of them have no problem riding rough-shot over Photographers work because they know there is a very slim chance that we could afford to sue for breach of Copyright. … Photographers make a living by selling photographs and deserve to be treated with the same respect as musicians, artists, and writers. There is great advertising value to be gained by using our images on the www but the Copyright Law must protect us from those who wish to make a living at our expense. Fair Use is not Fair Play.

From a more general perspective, David Brophy (Partner, FRKelly, Dublin) provided an immediate and excellent summary of the event on the 1709 Blog:

Hot of the press: today’s public consultation on copyright in Ireland

… The terms of reference include both amendments to Irish law and the identification of areas where EU directives may need amendment, with specific reference to whether a US-style fair use provision might be needed. This morning’s meeting began with three presentations based on experiences of those operating in the current environment.

• Brian Fallon of online news website The Journal.ie described how … aggregation of news content and photos would be seen as copyright infringement in Ireland.
• T. J. McIntyre, a practising solicitor, law lecturer and digital rights activist who runs Digital Rights Ireland, spoke of how the EU database right is being used by website owners (who argue their websites constitute databases) to prevent extraction and reutilisation of data by price comparison sites. He also pointed to the interface with contract law, such as was seen in the Irish High Court case of Ryanair v Billigfluege. …
• Finally David Cochrane, founder of discussion group Politics.ie spoke of how his team of 15 moderators spend significant time dealing with copyright infringement issue …

The discussion was then opened to the floor. Several contributors were from the journalist community, working either as photographers or reporters, and they were almost uniformly against any adoption of fair use provisions. From this observer’s viewpoint, they were also uniformly in the dark about how the US courts actually apply fair use. … The case against fair use was supported by IRMA (i.e. the major record labels collecting society) and by the Irish Film Board, who suggested that fair use was open ended and provided no certainty, unlike the European closed list of fair dealings. …

There are two pieces by Laura Slattery about the meeting in today’s Irish Times:

Copyright law confusion hinders firms, event told

Social media multinationals such as Google and Facebook are restricted from moving core search and aggregation functions to Ireland because of confusion about copyright legislation, it was claimed yesterday [by] T.J. McIntyre … Barry McCall, vice-president of the National Union of Journalists, said content creators “seem to be left out of the discussion” in the bid to make the law “more friendly for Google and Facebook”, while former minister for communications Eamon Ryan questioned the review’s terms of reference and said a broader approach was needed.

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.

… 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.

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

There is still plenty of time to make a submission before 14 July 2011.