Monday 4 July 2011

Hot of the press: today's public consultation on copyright in Ireland

David Brophy (Partner, FRKelly, Dublin) has just stepped out of this morning's Public Consultation Meeting which was held in Trinity College Dublin to identify areas of Irish copyright law that might need reform, particularly as regards fair use/fair dealing. He reports:
"This morning around 70 people turned up to a public consultation on copyright reform in Ireland. The meeting was chaired by Dr Eoin O'Dell from Trinity College Dublin (, who heads up a copyright review group set up earlier this year by the Irish Government (see earlier 1709 posting here). The group has been asked to identify areas of Irish copyright law that pose barriers to innovation particularly in the digital environment, with a view to making recommendations to resolve any problems identified.
The terms of reference include both amendments to Irish law and the identification of areas where EU directives may need amendment, with specific reference to whether a US-style fair use provision might be needed.This morning's meeting began with three presentations based on experiences of those operating in the current environment.
  • Brian Fallon of online news website described how his organisation operates and how it differs from US-based news sites such as Google News, Digg and Bleacher Report (a sports site). He expressed the view that such sites could never have been founded in Ireland due to the fact that aggregation of news content and photos would be seen as copyright infringement in Ireland.
  • T. J. McIntyre, a practising solicitor, law lecturer and digital rights activist who runs
  •, spoke of how the EU database right is being used by website owners (who argue their websites constitute databases) to prevent extraction and reutilisation of data by price comparison sites. He also pointed to the interface with contract law, such as was seen in the Irish High Court case of Ryanair v Billigfleuge.  The Court held in that case that the terms and conditions on Ryanair's website, which were accessible from a link at the bottom of the page, were binding on visitors to the site, and that this could be used to prevent practices such a screen scraping and deep linking.  T. J. McIntyre suggested that even without involving EU reform, it was open to Ireland to legislate on the interface between contract and copyright law.
  • Finally David Cochrane, founder of discussion group spoke of how his team of 15 moderators spend significant time dealing with copyright infringement issues: users tend to wish to discuss current news items and commonly seek to do so by posting either a link to the item (which is encouraged), or copy/pasting the text of a newspaper article (which is prohibited by their terms of use but happens all the same).  Certain users, unable to find the article they wish to discuss online will take a photo of the newsprint page and post that instead. 
The discussion was then opened to the floor.  Several contributors were from the journalist community, working either as photographers or reporters, and they were almost uniformly against any adoption of fair use provisions.  From this observer's viewpoint, they were also uniformly in the dark about how the US courts actually apply fair use.  
For instance one freelance news photographer opined that if fair use were introduced, her career would be over.  Fair use (she said) would effectively mean that nobody would pay for her photos.  The same contributor also questioned why she should be required to email a site such as if her photo appears there without permission - she suggested that the onus should be on the website to police her copyright and remove infringing work without her having the burden of asking or identifying the infringement.  Finally, and to some scattered applause, she offered the slogan "Fair use is never fair" which appeared to strike a chord with fellow reporters.  Enough said ... apart from this observation: the Review Group had specifically asked for evidence-based rather than anecdotal contributions.  On the evidence, there is no reason to believe that the USA's fair use system has made freelance photography untenable in that country or that such photographers cannot get paid for their work. 
Similarly, a number of print journalists, including a freelancer, a speaker from the National Union of Journalists, and a spokesman for National Newspapers of Ireland, suggested that fair use was effectively a licence to infringe copyright.  The NUJ spokesman made reference to the recent Righthaven decision in which reposting an entire article was deemed fair use. The case against fair use was supported by IRMA (i.e. the major record labels collecting society) and by the Irish Film Board, who suggested that fair use was open ended and provided no certainty, unlike the European closed list of fair dealings. 
Other notable contributions came from a speaker from the National Library of Ireland who was supported by a speaker from the Library Association of Ireland, who asked for clarity and certainty on digital archiving of work, so that they might be available a hundred years from now, and on the law relating to unpublished works.  Rob Corbet of Arthur Cox noted that in addition to the current consultation, the Department is currently running a parallel consultation on the issue of allowing content owners to obtain injunctions against ISPs, and questioned why the two issues were not being considered together given the obvious overlap. 
In the closing remarks, T. J. McIntyre made what was (to this writer) the best-informed contribution on fair use.  He corrected the view that the fair use evaluation is entirely open ended (he was the only speaker acknowledging that there is a statutory test of four factors), and noted that the Righthaven decision is something of an outlier, it being uncommon for reposting an entire print article to be permitted as fair use.  He also noted the drawback with using the closed-list of fair dealings: it cannot cater for unforeseen new uses of work, just as the issues raised by search engines or Google Books could not have been catered for under the Berne Convention or the Statute of Anne.
Hats off to Eoin O'Dell for chairing the meeting in an even-handed manner and for gently prising some riders off their hobby horses to keep the discussion on track. He stressed repeatedly that this meeting was a place to air views, but that it was equally crucial for interested parties to make written submissions to the Group (email them at  Once the views are received (the deadline is July 14) these will be summarised in a discussion paper on which further comments will be invited."
Thanks so much, David -- this is hugely appreciated!


Robbie said...

Well done. Nice summary

PaulH said...

Well done, good summary and well chosen points. said...

According to a Canadian fair dealing Supreme Court decision in CCH v. Law Society, the purposes of fair dealing in Canada should be given a liberal interpretation. As such, it is now arguable that fair dealing may now be more broadly interpreted than fair use. More at