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.…

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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.…

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Chapter 5 of the Copyright Review Committee‘s Consultation Paper briefly considers the position of collecting societies (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). Where rights-holders have established such societies to grant licences in copyrighted works and collect copyright royalties for distribution back to the rights-holders, they give effect to rights-holders’ rights in a very important practical way, and therefore constitute an important means by which rights-holders manage their copyrights and are rewarded for their investments and innovation.

The Copyright and Related Rights Act, 2000 (also here) provides for licensing schemes and the registration of collecting societies, but this is an bewilderingly byzantine area in practice, and in chapter 3 of the Paper, the Committee raised the question of whether many of those issues could be resolved by means of a body like the Copyright Council sketched in that chapter.

If a Council is not established, this chapter asks if there are any other practical mechanisms which might resolve those issues. It also asks if there are any issues relating to copyright licensing and collecting societies which were not addressed in earlier chapters but which can be resolved by amendments to the Act of 2000.…

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I’m delighted that lots of people are engaging with the consultation process on the Copyright Review Committee‘s Consultation Paper (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). First, the Committee now has a dedicated website and it will be directly linked from the Department’s homepage until the Review process is complete. The Committee’s site provides various ways to participate in the consultation process. As well as by post and email, the Committee has prepared an online questionnaire to reply to the questions they pose in the Consultation Paper.

Second, taking up an invitation from the Minister of State with responsibility for Research and Innovation at the Department of Enterprise, Jobs and Innovation, Seán Sherlock TD, the Irish Internet Association is also providing an online mechanism to facilitate internet stakeholders who wish to respond to the Paper. This will collate the views of its members and of the members of the Internet Service Providers Association of Ireland, and will gather the views of other members of the online community who wish to provide feedback in this way.

Third, Bernie Goldbach and David Brophy have written blogposts listing all of the questions from the Paper, making them very easily accessible indeed (update: I’ve also got around to listing them on this blog as well).…

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Chapter 4 of the Copyright Review Committee‘s Consultation Paper considers the position of rights-holders in copyright law in general, and how such rights-holders contribute to the process of innovation in particular (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). The intersection between copyright and innovation is clear in the case of rights-holders, who benefit from the rights conferred by copyright law in two main ways: they can commercially exploit their works, and they protect the artistic integrity of their works. The central premise from which copyright law has developed is that it is the potential reward provided by copyright that encourages the art, movie, music, programming and writing. In that sense, copyright law fosters and protects innovation. Moreover, copyright provides rights-holders legal protection for the artistic integrity of their works. Nevertheless, both of these justifications look not only to the rights-holder, but also to the public benefit of the work: the State affords copyright protection to rights-holders because a diverse range of work is for the public benefit or the common good; and the appropriate reward afforded to the rights-holder is not an end in itself, but rather the means to this diversity, competition and innovation.…

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One of the main issues on which the Copyright Review Committee invites submissions is whether there ought to be a Copyright Council of Ireland (the Council). The model which is proposed for discussion in the Consultation Paper would be an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and based on principal objects that ensure the protection of copyright and the general public interest as well as encouraging innovation (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)).

The copyright communities in many other countries – such as Australia, New Zealand, and the United Kingdom – have established copyright councils. The functions of these copyright councils are very similar, representing the interests of their members, principally rights-holders and collecting societies. However, the model in the Paper goes considerably further, with a broadly-based subscribing membership, so that every interested member of the Irish copyright community (such as all of the various categories of person and organisation which made submissions to the Review) could be subscribing members of the Council if they wish to be. Such a body has the potential to be an important resource for the Irish copyright community and the general public, especially if it undertakes processes of public education on copyright, recommends standards of best practice, and gathers evidence to support the process of ongoing copyright reform.…

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The main focus of the Terms of Reference of the Copyright Review Committee is upon the barriers to innovation, if any, created by Irish copyright law; and this was reflected in the submissions which the Committee received (update: you can download a pdf of the Paper here (via DJEI) or here (from this site)). After an introductory chapter 1, chapter 2 of the Copyright Review Committee’s Consultation Paper (published yesterday) sets out what the Committee understood by innovation (section 2.2), it briefly outlined some salient features of Irish copyright law (section 2.3), and the points in the previous two sections were applied to a classification of the submissions received (section 2.4).

In the Paper, the Committee construe “innovation” and its connections with copyright fairly broadly. Whilst the Committee has regard to innovation, creativity, ingenuity, renewal and transformation in all of their forms – artistic, cultural, educational and social, as well as economic – nevertheless, much public policy is now being driven by “innovation” in the sense of the development of new businesses, products and technologies. For example, the Organisation of Economic Co-Operation and Development (OECD) understands the process of innovation (pdf)

as the implementation of a new or significantly improved product (good or service), or process, a new marketing method, or a new organisational method in business practices, work-place organisation or external relations … [which must therefore] by definition, contain a degree of novelty.

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