In a recent comment to my post from last year, on Coronavirus and copyright – or, the copyright concerns of the widespread move to online instruction, I was asked about copyright when giving online lectures for local historical societies. The answer became too long and convoluted for a comment reply, so I thought I’d sketch it here in a post. It should have been a short reply, to the effect that there would be no copyright issues in the way of giving such lectures, but the more I thought about it, and the more I looked at the relevant legislation, the more complicated the answer became. This is not a good position for the law – unnecessary complexity is to the law’s eternal discredit. Indeed, I’m not even sure I’ve got to the bottom of the issue here. If anyone can advance the analysis, please feel free to let me know, either in the comments below, or via the site’s contact form. Meanwhile, this is my first stab at the issue, concluding quite a circuitous analysis with a recommendation for a rather more straightforward reform.

The first question is always whether copyright attaches to the images – as the cartoon, above left, suggests, it often feels like copyright is perpetual – but it does eventually time out. In general, the term of protection for copyright the life of the author plus seventy years. So, a lot of archive material is probably out of copyright.

If copyright attaches, then the question will be whether one of the fair dealing (not fair use, that’s a US concept) exceptions in the Copyright and Related Rights Act, 2000 (as amended) (also here) applies. In 2013, a review process (of which I was chair) recommended that the brief and limited display of a reproduction of a work during a public lecture given in a heritage institution should constitute “fair dealing”. The legislation implementing our report provided that

the brief and limited display of a copy of a work …
(a) … (ii) during the course of a public lecture given in a prescribed library or prescribed archive …,
(b) undertaken for the sole purpose of education, teaching, research or private study where such purpose is neither directly nor indirectly commercial, and
(c) accompanied by a sufficient acknowledgement

constitutes fair dealing (see section 69A(2) of the Copyright and Related Rights Act, 2000, as inserted by section 19 of the Copyright and Other Intellectual Property Law Provisions Act 2019 (also here)). References in the legislation to a “prescribed archive” include references to a “prescribed museum” (see section 2(3) of the 2000 Act; also here). But “prescribed” means that the relevant Minister has to prescribe which libraries, archives and museums get the benefit of the exception. This has not been done for the purposes of section 69A, which means that this section is, at present, a legislative dead letter.

Schedule 1 of the Copyright and Related Rights (Librarians and Archivists) (Copying of Protected Material) Regulations, 2000 (SI No 427 of 2000)), has a long list of qualifying libraries, archives and museums for other purposes:

1. Any library or archive administered by, or under the management or control of a library authority within the meaning of section 32 [link] of the Local Government Act, 1994, or by a local authority within the meaning of the Local Government Act, 1941 [link], or by a Health Board.
2. Any library or archive of any educational establishment within the meaning of section 2(1) of the Act [link; as amended], or prescribed by the Minister as an educational establishment under the provisions of section 55 of the Act [link].
3. The Library of the Houses of the Oireachtas.
4. The National Library of Ireland.
5. The Library of the Royal Irish Academy.
6. The Public Record Office of Ireland.
7. The National Archive.
8. The Law Library, Four Courts, Dublin 7.
9. Any library or archive administered as part of a government department, an office of State, or other office or agency operating within the aegis of a Minister of the Government.
10. Any other library or archive in the State which is conducted for the purpose of facilitating or encouraging the study of administration, bibliography, education, fine arts, history, languages, law, literature, management, medicine, music, philosophy, religion, science (including natural and social science) or technology, or administered by any establishment or organisation which is conducted wholly or mainly for such a purpose.

But those institutions are prescribed for the purposes of various specified sections of the 2000 Act, which do not include section 69A, for the obvious reason that it did not exist when SI No 427 of 2000 was made. Section 69A was inserted into the 2000 Act by the 2019 Act, and no statutory instrument has been made subsequent to the 2019 Act to amend SI No 427 of 2000 to refer to section 69A. This is plainly an oversight. When it is rectified, if the lecture is in one of the libraries, archives or museums within the above list, and if the three conditions in section 69A(2) set out above are satisfied, then the brief and limited display of a copy of a copyright work will constitute fair dealing. However, until then, the fair dealing exception in section 69A(2) is inoperative.

Perhaps that is just as well, because there is a bizarre omission from section 69A. It can be illustrated by the geography of Trinity College Dublin, where the main library complex connects with the Arts Building; there are lecture theatres in both the library and the Arts Building; but (once SI No 427 of 2000 is amended) whilst a public lecture in a lecture theatre in the library will get the benefit of the above provisions, a public lecture in the adjacent Arts Building will not. Section 69A applies to a library or archive in any educational establishment, but not to rest of the educational establishment. The 2013 recommendation specifically included both educational establishments and other heritage institutions, but the 2019 Act dropped the reference to the former – and proposed amendments to reintroduce it were defeated. It is a deliberate, but indefensible, omission. I can give the same public lecture to the same public audience on either side of a wall in Trinity, and be copyright compliant if I am on the library side of the wall but be infringing if I am on the Arts Building side of the wall. Logic is defeated by geography here, and that simply cannot be right.

There is a related ambiguity, flowing from the list of libraries and archives set out in Schedule 1 to SI No 427 of 2000. Let us assume that my lecture is not on a legal topic, but on the history of art, and that it is being given in the National Library of Ireland. Because that Library is listed in Schedule 1, once that is extended to section 69A, my public lecture would get the benefit of the fair dealing exception in that section. Now, let us assume that, on the following night, I give the same public lecture, not in the National Library of Ireland, but in the National Museum of Ireland. That Museum is not expressly mentioned in Schedule 1 to SI No 427 of 2000; but section 2(3) of the 2000 Act provides that references to prescribed archives include references to prescribed museums; so the National Museum could be “prescribed” and listed in the Schedule, but it isn’t. It may very well constitute an archive (which includes museum) “administered as part of … [an] office or agency operating within the aegis of a Minister of the Government” for the purposes of paragraph 9 of the Schedule, and I would certainly argue that point, but that is not certain. All this means that it is unclear whether my public lecture in the National Museum would get the benefit of the exception in section 69A. Further, let us assume that, on the third night, I give the same public lecture, not in the National Library of Ireland or the National Museum of Ireland, but in the National Gallery of Ireland. Like the National Museum, the National Gallery is not expressly mentioned in Schedule 1 to SI No 427 of 2000; but, unlike the National Museum, the National Gallery cannot arguably be brought within Schedule 1 by a combination of section 2 of the 2000 Act and paragraph 9 of Schedule 1 to SI No 427 of 2000. All this means that my public lecture in the National Gallery would not get the benefit of the exception in section 69A. Again, logic is defeated by geography – by expressly confining the benefit of section 69A to libraries, archives and museums listed in SI No 427 of 2000, other heritage institutions are illogically excluded; the most obvious excluded category is galleries, of which the leading example is the National Gallery. There is no reason why a public lecture on the history of art in the National Library should be a fair dealing while the same public lecture in the thematically more appropriate surrounds of the National Museum or the National Gallery should not.

The query that sparked this post also wondered about providing such lectures online, or recording such lectures and making them subsequently available online, for example by YouTube. The 2013 recommendations specifically provided that the communication of such a public lecture “through the internet or otherwise” should also constitute “fair dealing”. But there is no equivalent provision in section 69A of the 2000 Act as inserted by section 19 of the 2019 Act. There are, as I see it, at least three issues to be considered.

First, let us assume that I am giving my public lecture in a room in the library in Trinity on the copyright-compliant side of the wall between the library and the Arts Building, but that there is no audience in the room for Covid reasons, so that I make it available online instead. This raises the question whether the silence in section 69A on the question of making such public lectures available online means that doing so would be a copyright infringement even if the original lecture in the room is not. Section 69A provides that, in a public lecture in a library or archive, the brief and limited display of a copy of a copyright work “constitute fair dealing with the work for the purposes of section 50(1)” of the 2000 Act; and that section (here and here) provides such fair dealing “shall not infringe any copyright in the work” (emphasis added). So, if the underlying lecture is a fair dealing that does not infringe any copyright, there would seem to be no copyright which an online broadcast could infringe. A technologically neutral interpretation of the legislation would reinforce this conclusion.

Second, let us assume that, whether or not I have contemporaneously made the lecture in the library available online, I record the lecture, and I subsequently make that recording available here on this website, or on a video-sharing site such as YouTube. Again, this raises the question whether the silence in section 69A on the question of making recordings of such public lectures available online means that doing so would be a copyright infringement even if the original lecture in the room is not. Again, if the underlying lecture is a fair dealing that does not infringe any copyright, there would seem to be no copyright which a recording could infringe.

Third, let us assume that I have been invited by the library to provide a public lecture, but, for Covid reasons, I can’t actually do it from the library. Instead, I do it online from my office in the Arts Building in Trinity, or I do it online from home. Section 69A relates to public lectures “in” a library or archive, but, in this hypothetical, the public lecture is being given online from elsewhere for the library or archive. Whether this gets the benefit of the exemption turns on the meaning of the word “in”: does it mean physically in, or can it include virtually in. A technologically neutral interpretation of the legislation should conclude that – especially in this day and age, when the coronavirus has moved so much online that will stay online when are on the other side of the pandemic – they are one and the same. But an overly literal interpretation cannot be excluded.

There may be a workaround. Section 69A(a)(i) of the 2000 Act, as inserted by section 19 of the 2019 Act, provides that “the brief and limited display of a copy of a work … by the librarian or archivist of a prescribed library or prescribed archive”, where (b) and (c) above are also satisfied, constitutes fair dealing. So, a librarian or archivist would seem to get the benefit of the section 69A fair dealing exception independently of geography or location. And section 2(5) of the 2000 Act (also here) provides that a reference “to a librarian or archivist shall include references to a person acting on his or her behalf”. If I am invited to give a public lecture on behalf of the librarian or archivist, and if the librarian gets the benefit of the section 69A(a)(i) fair dealing exception, then I would too when acting on his or her behalf. And since there is no geographical limitation to a public lecture in a library in that subsection, neither the librarian nor I would infringe copyright giving the lecture from elsewhere, such as online from home.

Legislative clarity on the various points teased through here would be welcome. Otherwise, a great many public lectures delivered online during the pandemic would illogically infringe copyright. There are many unnecessary limitations to, and ambiguities in, the exception provided by section 69A of the 2000 Act as inserted by section 19 of the 2019 Act. Many of these were foreseen in 2013, but unaccountably excluded in 2019. The pandemic has demonstrated the folly of their exclusion. But all is not lost. We have yet to transpose Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ L 130, 17.5.2019, p. 92–125) [the DSM Directive] into Irish law. Advantage should be taken of revisiting copyright in any transposing legislation to amend section 69A to avoid the anomalies identified here. To do so, I would amend the 2000 and 2019 Acts by including a section to the following effect in that forthcoming legislation:

Fair dealing in libraries, archives, and educational establishments
(1) In this section, the “Principal Act” means the Copyright and Related Rights Act 2000.

(2) Section 2 of the Principal Act is amended by the substitution of the following subsections for subsections (3) and (4):

“(3) A reference in this Act to a prescribed archive shall include references to a prescribed museum, a prescribed gallery, or any other prescribed heritage institution.

(4) A reference in this Act to an archive shall include references to a museum, gallery or other heritage institution; and a reference in this Act to an archivist shall include references to a curator or director of a museum, gallery or other heritage institution.

(4A) A reference in this Act to a heritage institution shall include references to any eligible institutions to which the Heritage Fund Act, 2001 applies.”

(3) Section 69A of Principal Act (as inserted by section 19 of the Copyright and Other Intellectual Property Law Provisions Act 2019) is amended by the substitution of the following subsections for subsection (2):

(2) Without prejudice to the generality of section 50(1), the brief and limited display of a copy of a work—
    (a)    either—
             (i) in, or on behalf of, an educational establishment, a prescribed library or prescribed
                    archive,
             (ii) during the course of a public lecture given in, or on behalf of, an educational
                    establishment, a prescribed library or a prescribed archive, or
             (iii) by the librarian or archivist of a prescribed library or prescribed archive, or by the
                    head of an educational establishment,

    (b) undertaken for the sole purpose of education, teaching, research or private study where
             such purpose is neither directly nor indirectly commercial, and

    (c) accompanied by a sufficient acknowledgement,
shall constitute fair dealing with the work for the purposes of section 50(1).

(3) For the purposes of subsection (2) the head of an educational establishment means—
    (a)    the Registrar appointed pursuant to section 17 of the Institute for Advanced Studies Act, 1940,
    (b)    the chief officer of a college or institute appointed pursuant to section 9 of the Regional Technical Colleges Act, 1992 as amended by section 10 of the Institutes of Technology Act 2006,
    (c)    the chief officer of a university appointed pursuant to section 24 of the Universities Act, 1997, as amended by section 53 of of the Institutes of Technology Act 2006,
    (d)    the head teacher of a school which is recognised by the Minister in accordance with section 10 of the Education Act, 1998,
    (e)    the chief officer (howsoever described) of a university which is authorised by the Minister in accordance with section 2 of the Education (Miscellaneous Provisions) Act 2015, and
    (f)    the chief officer of a technological university appointed pursuant to section 13 of the Technological Universities Act 2018.

(4) For the avoidance of doubt, where the communication of a work constitutes fair dealing for the purposes of the Principal Act, then the online communication of that work or of a recording of that work, through the internet or otherwise, constitutes “fair dealing” for those purposes.

That having been enacted, I would include the following regulations in the first Statutory Instrument enacted to give effect to the legislation containing that section:

(1) In these Regulations:
“the Act” means the Copyright and Related Rights Act, 2000 (No. 28 of 2000); and
“the Regulations of 2000” means the Copyright and Related Rights (Librarians and Archivists) (Copying of Protected Material) Regulations, 2000 (S.I. No. 427 of 2000).

(2) The descriptions of libraries and archives specified in Part A of Schedule 1 to the Regulations of 2000 that are not conducted for profit are prescribed for the purposes of section 69A in Part II of the Act.

(3) The National Gallery of Ireland and the National Museum of Ireland shall be archives for the purposes of Part A of Schedule 1 to the Regulations of 2000.

The enquiry that provoked this post asked some straightforward questions. The answers, at present, are anything but straightforward. But if the above amendments are enacted, then straightforward, and appropriate, answers will be available if I get the same questions in the future.