A committee that was established by the Minister for Jobs, Enterprise and Innovation to consider Irish copyright law recently published its final report. The Copyright Review Committee’s instructions included to consider whether copyright law creates barriers to innovation and to make recommendations to resolve any barriers that it identified. In its report, which includes a draft bill to amend existing Irish copyright legislation, the Committee sets out a range of recommendations with the aim of modernising copyright to foster and support innovation, particularly in the digital sphere.

A public forum was held on 9 December at the Royal Irish Academy at which the Committee presented its findings to the copyright community.
The following are the key recommendations:

  • Copyright Council: The establishment of an independent and self-financing Copyright Council of Ireland with a broad membership base. Its functions would include providing education and advice on copyright issues, advocating for copyright policy developments and establishing a Digital Copyright Exchange to expand and simplify the collective administration of copyrights and licences.
  • Specialist Courts: The establishment of specialist intellectual property tracks in the District and Circuit Courts and an alternative dispute resolution service to be administered by the Copyright Council of Ireland.
  • Improvements for Users of Copyright Material: Improving the position of copyright users by implementing the full range of exceptions that are permitted by EU law, including format shifting, parody, education and non-commercial user generated content and to extend existing exceptions for persons with disabilities and heritage institutions.
  • Exceptions for Innovation and Fair Use: The introduction of tightly drafted and balanced exceptions for innovation and fair use, which are considered particularly relevant to those in the technology and creative sectors. The Committee proposes that it should not be an infringement of a copyright work to use it to derive an original work that either substantially differs from, or substantially transforms, the initial work. As regards a ‘fair use’ exception, the Committee recommends the introduction of an Irish version of fair use, which would not be as broad as the US doctrine. It is proposed that existing exceptions should be exhausted first before turning to a consideration of fair use. The question of whether a use is ‘fair’ is to be determined based on such matters as a court considers relevant, including all or any of 8 separate factors that have been identified by the Committee.
  • Linking: Linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. It is also proposed that including a snippet of the linked work reasonably adjacent to the link would not infringe copyright, provided that the snippet does not exceed 160 characters or 40 words.
  • Digital Watermarks and Metadata: The introduction of explicit protection for digital watermarks and other metadata in order to provide additional protection for photographers.
  • The Committee was mindful that Irish copyright law is required to comply with EU law and, as such, it did not make recommendations that would run contrary to EU law or that might be implemented shortly via decisions of the Court of Justice of European Union.

Although many of the recommendations would, if implemented, bring about changes that are likely to be broadly welcomed, some may require further consideration. For example, it is proposed that there should be a rebuttable presumption that where a person transfers any material thing containing an original fixation of a copyright work, and they are also the owner of the copyright, then they also intend to transfer the copyright in the work. This may result in creators of copyright works being under a general onus to include express disclaimers when parting with physical possession of their works to prevent unintended transfers of copyright.

Another recommendation requiring further consideration is that any contract term that ‘unfairly’ purports to restrict an act that falls within the statutory exceptions to copyright infringement would be void. It is proposed that principles derived from the Unfair Terms in Consumer Contracts Regulations, should be used to determine whether such a contract term is ‘unfair’. This would be a significant change to the general freedom of contract that is enjoyed by parties to B2B contracts under Irish law, and may result in uncertainty regarding the enforceability of copyright licence restrictions in commercial contract