Chapter 10 of the Copyright Review Committee‘s Consultation Paper addresses the third of the Committee’s four Terms of Reference (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). That third Term of Reference requires the Committee to

examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context.

The chapter begins with a consideration of the doctrine in jurisdictions which have adopted it – these include not only the United Stated (see section 107 of the Copyright Act, 1976 (17 U.S.C. § 107) but also Israel (see section 19 of the Copyright Act, 2007 (pdf)), Singapore (see section 35 of the Copyright Act, 1987 as amended), and the Philippines (see section 185 of the Intellectual Property Code of the Philippines (Republic Act No. 8293) (1997) (pdf)). The chapter also refers to jurisdictions which are considering adopting the doctrine – these include not only the United Kingdom (pp 9 & 44-47)) but also Australia (here and here), Israel India (pdf) and the Netherlands.

This is a very controversial issue which aroused the greatest passions both in the submissions and at the public meeting. The debate tracked four main arguments. First, the doctrine’s critics argued that fair use subverts the interests of rights holders, whilst the enthusiasts’ argued that it brings balance to the copyright system and accommodates the interests of other parties. Second, for its critics, a significant objection to the fair use doctrine is that it is unclear, and can thus undermine existing business models. On the other hand, for its enthusiasts, the main benefit of the fair use doctrine is that it is flexible, and can thus accommodate new technologies and emerging business models. Third, some critics argued that the fair use doctrine is not, in fact, necessary as Irish law currently stands, because the long-established and well-understood exceptions in the Copyright and Related Rights Act, 2000 (also here) were ample, whilst some said that the addition of the European Union Copyright Directive exceptions (discussed in Chapter 7) would be more than sufficient. On the other hand, enthusiasts for fair use argue that existing exceptions are insufficient to support many aspects of emerging digital business models, and that an approach based on iterated exceptions (even as extensive a list as that contained in EUCD) rather than upon an overarching principle is too inflexible to accommodate technological innovation of the kind that has stimulated the growth of high-tech business in the US. Fourth, some critics argued that there is no evidence that the current copyright system in Ireland is inhibiting innovation, and in particular, that there is no evidence that a fair use doctrine is necessary to encourage innovation. On the other hand, many enthusiasts that innovators in the US benefit greatly from the doctrine, especially in the digital environment.

EU law was invoked both by critics of the doctrine (as a reason why it should not be adopted at Irish law) and by its enthusiasts (as a reason to press for its adoption at an EU level). While the Paper considered that there is a great deal of scope under EU law for member states to adopt a fair use doctrine as a matter of national law, in the end EU neither necessarily precludes fair use nor mandates it.

There is plainly a long way to go on this issue, and it may well prove impossible to reconcile these extreme positions. However, a more balanced outcome may yet be achieved, and the Chapter therefore concludes by seeking to sketch what a fair use for Ireland might look like, if it were to be recommended in the Committee’s Final Report. The Paper emphasizes that any Irish provision should:

• take full account of the legitimate concerns raised by the doctrine’s critics;
• be tied as closely as possible to the existing exceptions, which should be regarded as examples of fair use so as to allow workable analogies to be developed, and which should be exhausted before any claim of fair use can be considered; that is to say, any Irish fair use clause should be both tied to and informed by the existing CRRA and EUCD exceptions;
• be based not just on the four US criteria, but also on Article 9(2) of the Berne Convention and on the experience of other countries which have adopted a similar doctrine; in this way, there would be a wide range of international authorities on which to draw for the purposes of interpretation;
• be modelled upon existing Irish statutory language, where possible and appropriate; and
• be brought into effect by the Minister only when the time is right, and especially after widespread consultation by the Press Copyright* Council which is suggested in chapter 3.

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!

* Update: For the correction of this typo, please see the first two comments below. Thanks. Eoin.