Chapter 8 of the Copyright Review Committee‘s Consultation Paper considers whether the Copyright and Related Rights Act, 2000 (also here) creates barriers to innovation by entrepreneurs (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)).

Although the interests of rights-holders are central to copyright law, the law recognises other interests as well, and entrepreneurs feature on both sides of this balance: sometimes as rights-holders, but increasingly as internet start-ups seeking to develop novel methods of engagement with content. A properly balanced copyright system should seek not only to reward initial creativity but also to encourage follow-on innovation. Hence, as with the balance between rights-holders and users in the previous chapter, one of the main questions for the Review is whether the copyright balance between rights-holders and entrepreneurs now requires further amendment, in particular to incentivise innovation.

The chapter begins by considering the contribution which entrepreneurs make to innovation. They are a key source of the innovation identified in chapter 2, and some of the submissions argued that inflexibility in Irish and EU copyright regimes hinder innovation, and that access to and use of legal digital content ought to be made easier and more attractive in Ireland and Europe. The chapter therefore assesses the extent to which entrepreneurs can or should be able to take advantage of copyright exceptions for the purposes of innovation. Finally, the chapter examines whether it is possible or desirable to craft a specialist copyright adaptation exception for innovation.

The Paper considers that the European Union Copyright Directive neither precludes such a development nor provides any guidance for it, but that the three-step test in Article 9(2) of the Berne Convention might provide the principles for a first attempt at drafting a possible specialist innovation exception. The Paper explains (at p92; emphasis in original) that the key aspects of the proposed definition

are that the innovation has to be an original work that is substantially different from the initial work. As … pointed out in … [chapter 2], these notions of “originality” and “substantiality” are already integral to copyright law; and something that merely repackages or even draws upon the initial work would not pass that test. Moreover, … [the innovative work] has to be something new, beyond the normal exploitation of the initial work; and a substitute, alternative or competitor would not pass that test. The essence of innovation is that it creates new value; and these new insights, new goods or new services will have the capacity to generate economic growth and deliver benefits to society as a whole.

The widespread phenomenon of the analysis of internet data for various purposes provides original outputs that differ substantially from the initial inputs; and yet their copyright status is unclear as a matter of Irish law. The Paper therefore considers whether a copyright exception to promote innovation is likely to be necessary to ensure that copyright law does not stifle these kinds of innovative business models. Artistic transformation by means of a proposed parody fair dealing exception is considered in chapter 7; this innovation exception addresses entrepreneurial transformation; and, in many ways, these two proposed exceptions would logically complement one another.

As always, the chapter ends with a series of questions which seem to the Committee to arise from the discussion in the chapter, 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.

I look forward to seeing you there!