Chapter 6 of the Copyright Review Committee‘s Consultation Paper considers whether the Copyright and Related Rights Act, 2000 (also here) creates barriers to innovation by online intermediaries. Intermediaries run up against the copyright interests of rights-holders in several ways: they may be primarily liable for breach of copyright where their own activities infringe copyright; and they may be secondarily liable for breach of copyright where the activities of their users infringe copyright (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)).

First, the most likely way that intermediaries may be primarily liable for breach of copyright is where the technological processes of transmitting data result in transient and incidental copies of the data. Article 5(1) of the European Union Copyright Directive provides a defence in such circumstances which has been transposed into Irish law by section 87(1) and 244(1) of the 2000 Act; and the Paper considers this transposition.

Second, the most likely way in which intermediaries may be secondarily liable for breach of copyright is where the activities of their users infringe copyright; Irish law, implementing a European Directive, now provides for some immunities in certain circumstances from such secondary liability; and the Paper considers this transposition.

The Paper also considers the extent to which linking infringes copyright, and invites submissions as to whether CRRA ought to be amended to provide that a link to copyright material, of itself and without more, should not constitute either a primary or a secondary infringement of that copyright.

The internet is creating new industries and business-models which in turn are raising new issues in the intersection of copyright and innovation. One important example is provided by the business of websites which marshal news from other news sources. Marshalling (a word coined in the Paper as a generic description of indexing, syndicating, aggregating, curating, and so on) is an example of a new generation of digital and online business, but it faces criticism from traditional news rights-holders as infringing copyright in the content which they marshal. The Paper suggests that the issue is considerably more nuanced than this binary division allows, and that there is likely to be a blend of responses to the issue, and it therefore invites submissions in this regard.

As always, the chapter ends with a series of questions which seem to the Committee to arise from the discussion of the position of intermediaries, and it is hoped that the next round of submissions will engage some of these questions (there are 86 questions in total, set out in Appendix 3 to the Paper, and the Committee would be delighted to receive responses to any of them. In particular, it is not necessary for any submission to seek to answer all of them). Any submissions should be received by close of business on Friday 13 April 2012 Thursday 31 May 2012. To make a submission, you can

• email the Review,
• write to Copyright Review, Room 517, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2,
• complete the Committee’s online questionnaire, or
• use any of the other online submission mechanisms being made available by many interested parties.

There will also be a public meeting from 10:00am until 12:00 noon, on Saturday 24 March 2012, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary. To register, you can

• email or write to the Review, as above, or
• complete the Committee’s online questionnaire and answer the last question by confirming that you wish to attend the meeting.