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copyrightThe Copyright Review Committee published its 180-page ‘Modernising Copyright’ report for the Department of Jobs, Enterprise and Innovation yesterday.

The Cathach of St Columba [above] from the Royal Irish Academy’s collection, graced the cover of the report with the committee acknowledging that:

“The Cathach is the oldest extant Irish illuminated manuscript and the earliest example of Irish writing, and it is traditionally accepted as the psalter which St Columba copied from St Finian.

 

The committee consisted of  Dr Eoin O’Dell of Trinity College (Chair), Professor Steve Hedley of University College Cork and Ms Patricia McGovern of DFMG Solicitors.

In relation to “marshalling” – a term used to cover indexing, syndication, aggregation and curation of online content – the committee said:

“The German Parliament has recently sought to provide a specific exception for news marshalling. On 7 May 2013, the German Parliament passed legislation which provides for an exception to newspapers’ copyright in respect of “einzelne Wörter oder kleinste Textausschnitte”, that is to say, “single words or very small snippets of text”.

“This plainly allows for a certain degree of marshalling without infringing copyright; but, unfortunately, there is no further definition of “very small snippets of text”. The legislation took effect on 1 August 2013; it is an indication of how legislatures in other EU member states are addressing these issues; and it suggests a means by which CRRA might be amended to accommodate marshalling.”

We recommend here that a very narrow marshalling exception, modelled on the German provision, but with more definitions and safeguards,(3) To provide appropriate context for a link permitted under subsection (1), it is not an infringement of the rights conferred by this Part to reproduce reasonably adjacent to the link a very small snippet of the linked work; provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. (4) It shall be a matter of fact and degree in any given case as to whether the criteria in subsection (3) are satisfied. (5) Without prejudice to subsection (4), where the work being reproduced is a literary work, then an extract which is (a) no more than one hundred and sixty characters, and (b) no more than forty words shall constitute a very small snippet for the purposes of subsection (3). (6) Without prejudice to subsection (4), where the work being reproduced is a literary work, then an extract which is (a) no more than two and half per cent of the total number of words in the work, and (b) no more than forty words shall constitute a very small snippet for the purposes of subsection (3).”

As for ‘Fair Use’, the committee recommends:

“The Report acknowledges that fair use is a controversial topic, with powerful views expressed both for and against it. It does not recommend the introduction of the “the US style ‘fair use’ doctrine” which it considered under its terms of reference, but rather a specifically Irish version.

“It recommends the introduction of a new CRRA section allowing for fair use, but tying it very closely to existing exceptions and making it clear that these exceptions should be exhausted before any claim to fair use should be considered.

The exceptions should be regarded as examples of fair use so as to allow workable
analogies to be developed, and sets out the criteria for the court to take into account in determining whether or not a matter amounts to fair use.”

The Report concludes that a fair use exception can and does sit comfortably alongside the successful exploitation of copyright by rightsowners and does not see any legal reason against the development of a tightly-drawn fair-use exception. The Report finds that the doctrine as drafted would enable context–sensitive accommodations to be developed as the occasion arises without the need to amend legislation, thereby sending important signals about the nature of the Irish innovation system and providing the Irish economy with a competitive advantage in Europe.”

Today, the National Newspapers of Ireland responded to the report.

In a statement, the NNI says:

NNI is concerned by a number of the Committee’s recommendations, particularly the introduction of various exceptions to existing copyright law.  The cumulative effect of those new exceptions (such as proposed exceptions for “innovation”, “fair use”, “marshalling” and a specific exception relating to news content) will greatly limit the ability of newspapers to prevent others from commercially exploiting their content without permission or fair remuneration.”

“Original newspaper content is designed to inform the public on matters of public interest and concern. The creation of this content requires significant expenditure and investment by publishers – our members invest hundreds of millions of euro annually in the creation of high quality content for our readers. Robust copyright protection will help guarantee this investment into the future.  Any watering down of copyright protection could have undesirable and perhaps unforeseen consequences, such as jeopardising investment in content creation which, in turn, would threaten press freedom and media pluralism. This clearly would not serve the public interest.”

It is disappointing that the Committee did not take the opportunity to make recommendations that would limit the extent to which unlawful aggregation and electronic distribution of newspaper content (and the content of other publishers) occurs.

*cough*

Full committee report here

Full NNI statement here

Previously: You Can Help Save The Irish Internets

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