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 (http://twitter.com/cearta), 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 http://thejournal.ie 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
http://digitalrights.ie, 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 http://politics.ie 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 http://politics.ie 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 copyrightreview@djei.ie).  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!

Ireland seeks radical copyright reforms

The three-person Committee decided it was time
to get to grips with the new digital technologies ...

According to a media release this morning, kindly forwarded by Samantha Holman (Executive Director, Irish Copyright Licensing Agency), Ireland's Minister for Jobs, Enterprise and Innovation Richard Bruton T.D. has commenced a process of reform of Ireland’s copyright regime, in an effort to maximise the potential of Ireland's digital industry. The politician says:

“I am determined that government will make whatever changes are necessary to allow innovative digital companies reach their full potential in Ireland. These companies make an enormous contribution to jobs and economic growth, and government must do everything it can to allow them to flourish and expand in Ireland.

Some companies have indicated that the current copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and to the establishment of new business models [Depends whether the business model involves creating new work or using other people's, doesn't it?]. Moving towards a US-style “fair use” doctrine is one suggestion that has been made [My personal impression is that "fair use" has both advantages -- in terms of getting some good results -- and disadvantages in terms of encouraging more litigation because its outcome is less easy to predict].

I am determined to respond to these suggestions in a comprehensive and timely manner. It is not wise to make changes to this extremely complex area of legislation without first considering the issues in detail. [Now there's a thought!]

Therefore I have commenced a time-limited review of the law in the area to be conducted by three industry experts. The review will include a full consultation process with all relevant stakeholders, and the entire process will be complete within six months.

If they find that there are changes that can be made, within the confines of EU and other law in this area, which can enhance the environment for innovation by digital companies, I will move swiftly to act”.

The Review Committee will be chaired by Dr Eoin O’Dell of Trinity College, Dublin and will include Professor Steven Hedley of University College Cork and Patricia McGovern of DFMG Solicitors. Details of the review and the Terms of Reference are available here. Submissions to the Copyright Review Committee should be emailed here by close of business on Thursday 30 June 2011.

The choice of committee members is interesting. Two are academics, each of whom has an interest in restitution.  This leads me to wonder whether a restitution-based approach -- possible based on a pay-as-you-use basis in place of the traditional copyright monopoly (and in turn a bigger role for collecting societies) -- might be seriously considered.  The third is a seasoned and respected private practitioner who will, in the course of her career, have had the opportunity to advise both those who own rights and those who are anxious to minimise the risk of infringing the rights of others.  Conspicuously absent is anyone from a business currently operating in the digital environment.  This probably makes sense.  The panel of three will be obliged to listen closely to the many submissions from within the digital industries and from copyright owners and their representatives, but it is less certain that a panel drawn from the various industrial and rights-owning interests would have the time and the patience to listen to the still small voice of the academic.

Oh the luck - Irish get three strikes back - and a new music service too!

Eircom, the Irish internet service provider, has resumed its policy of cutting off the internet connection of customers who illegally share music online. The company had suspended its policy earlier this year but before this the company sent out about 1,000 warning notifications each week to people who were allegedly infringing copyright by illegally downloading music. Its “three strikes” policy allows customers three official warnings before their internet connection is suspended.

The move is especially interesting given that the Mr Justice Charleton, in Irish High Court, had (somewhat reluctantly) agreed with rival broadband supplier UPC in a battle against several record companies, ruling that internet service providers were not liable for a customer’s illegal downloading nor did Irish law provide any basis for a ‘three strikes’ approach. In an very impressive presentation on recent case law in this area at the Music and IP conference in London yesterday (8th December) 5RB barrister Christina Michalos explained that Mr Justice Charleton said that there was no injunctive relief available in Ireland in the matter and that Irish copyright legislation made ”no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright” - and that the powers of Irish courts did not extend to obligating an ISP to block access to file sharing sites. Despite this, Eircom has decided to resume the strategy it implemented a year earlier following an out-of-court settlement with the same companies. Stephen Brennan, Eircom’s managing director for consumers and small businesses said that as the country’s largest broadband provider, Eircom felt its method of warning internet users about their activities was the best compromise between music companies and internet providers. Before the suspension Eircom had not actually yet disconnected any customers’ broadband but it did have some on three strikes at the time of the High Court case.

Simultaneously Eircom has launched a new online legal service, MusicHub, which offers free and unlimited streaming to Eircom broadband customers along with deals for legally downloading music to personal computers offering a range of bundled download packages where the unit price for each track downloaded could be as low as 32 cents. Launching the new service yesterday, Eircom's Stephen Beynon said "MusicHub is a major development for Eircom in the online content space. We are the first and only internet provider in Ireland to offer online streaming as part of a music service. Customers will not find a greater selection of music across all genres anywhere else in Ireland from their broadband provider". Mr Brennan described it as the “carrot” part of the company’s carrot-and-stick approach to counteracting copyright infringement, with the three strike process agreed with record labels being the “stick”. An Eircom's statement stressed net suspensions was a "measure of last resort".

http://www.irishtimes.com/newspaper/ireland/2010/1209/1224285100549.html

EMI Records & Others v UPC Communications Ireland Ltd (2010) IEHC 377

Cutting off internet infringers: Ireland is different, says judge

Peter Charleton J

The IPKat has already reported on this decision, a little breathlessly, late last night, but you can read it for yourself here: it's yesterday's ruling by Mr Justice Peter Charleton (High Court, Ireland, right) in EMI and others v UPC that there was no basis upon which the owners of sound and video recording copyrights could successfully press the defendant internet service provider to prevent the unauthorised and infringing uses made of materials in which the companies owned the copyright.

Of particular interest to readers are what the judge says at paras 135 to 137 of his decision:

135. There were two prior judgments of the Court in relation to issues related to this case. In EMI Records (Ireland) Limited v. Eircom Limited [2010] IEHC 108, (Unreported [but noted here], High Court, Charleton J., 16th April, 2010), as has been previously stated, a similar action had been brought against Eircom, as the largest internet service provider in the State. This was settled on the basis of a three strike policy that is fully set out in that judgment. The Court was asked to determine the capability of aspects of that settlement with the Data Protection Acts 1988-2003, three issues having been raised in correspondence by the Data Protection Commissioner. In the light of the evidence in this case, and the conclusions that the Court has reached, the Court would wish to make it clear that this judgment is unaffected. I have reconsidered it in the light of the evidence and submissions in this case and I am of the view that the judgment is correct. 

136.A different conclusion arises in relation to the judgment of the Court in EMI (Ireland) Limited v. Eircom Plc [2009] IEHC 411 (Unreported [but mentioned in passing on this blog here], High Court, Charleton J., 24th July, 2009). That judgment was, as the first 80 paragraphs of it indicates, delivered extempore, having heard, as I said, only one side of the case. In settling the litigation, EMI and Eircom agreed that an application would be brought to block access to ‘The Pirate Bay’ website on the facilities of Eircom, as an internet service provider. The conclusion I reached in that judgment, that I was entitled as a matter of law, to block access to that site, was arrived at in the absence of argument to the contrary by Eircom. While Eircom did not consent to the judgment, at the same time, they appeared in court and offered no argument against the analysis in favour of the grant of an injunction: this position of not arguing against the injunction, I understand, was part of the terms of the settlement between those parties. Counsel for Eircom was thus constrained into offering no opposition to the argument. 

137. Having fully considered the issue of blocking a site as variant as The Pirate Bay, I regret that my previous judgment in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions. The parties to that case may wish to reapply, or they may be content that The Pirate Bay should be blocked through the channels of Eircom.No order as to costs was made in that case, as the application was uncontested and costs were not sought as a matter of consent".

Eircom users to face Dtecnet scrutiny

The Irish Times has reported ("Eircom to cut broadband over illegal downloads") that

"EIRCOM WILL from today [24 May 2010] begin a process that will lead to cutting off the broadband service of customers found to be repeatedly sharing music online illegally.

Ireland is the first country in the world where a system of “graduated response” is being put in place. Under the pilot scheme, Eircom customers who illegally share copyrighted music will get three warnings before having their broadband service cut off for a year.

The Irish Recorded Music Association (Irma), whose members include EMI, Sony, Universal and Warner, reached an out-of-court settlement with Eircom in February 2009 under which the telecoms company agreed to introduce such a system for its 750,000 broadband users.

The mechanism by which it operates was challenged in the courts by the Data Protection Commissioner. Mr Justice Peter Charleton ruled in the High Court [see IPKat note here] that a broadband subscribers internet protocol (IP) address, which Eircom will use to identify infringing customers, did not constitute personal information.

It is understood that, during the pilot phase, Eircom has agreed to process about 50 IP addresses a week. Irma is using a third-party firm, Dtecnet, to identify Eircom customers who are sharing, and not simply downloading, a specific list of its members’ copyrighted works on peer-to-peer networks. The operation of the scheme will be reviewed after three months.

Dick Doyle, director general of Irma, said his organisation could potentially supply Eircom with thousands of IP addresses a week but it was a matter of seeing what the internet service provider (ISP) was able to process.

Infringing customers will be initially telephoned by Eircom to see if they are aware of the activity on their broadband network. If the customer is identified a third time, they will have their service withdrawn for seven days. If they are caught a fourth time their broadband connection will be cut off for a year. Mr Doyle said international research suggested 80 per cent of people will stop illegal file-sharing if they get a letter from their ISP warning them of the consequences [Is this research published? What's its methodology? Is it reliable?]. ...

... Cable operator UPC has resisted requests from Irma to implement a “three strikes” system and the case is in the courts next month. Last night, a spokeswoman for UPC said it does not see any legal basis for monitoring or blocking its subscribers’ activities".

The 1709 Blog, which hasn't yet heard reports of anyone receiving a call from Eircom, is fascinated to see how effective this procedure will be and hopes its readers will keep it informed of developments as they unfold. Other than a migration of illegal file-sharers to other ISPs and/or fresh identities online, this blogger suspects that the net result of this exercise will be reflected in the increased cost of monitoring and enforcing copyright but without a corresponding increase in sales of legitimate product.

Irish hotel bedroom entertainment comes under judicial scrutiny

Via the eagle-eyed Gemma O'Farrell comes this news that the Irish High Court has asked the Court of Justice to give a preliminary ruling on legal issues raised in proceedings brought in an effort to have hotel operators pay a charge for playing copyright music in guest bedrooms. According to the Irish Times,

"The organisation which collects royalties for recording artists, Phonographic Performance Ireland Ltd (PPI), initiated an action last year against the State over its alleged refusal to amend a law which exempts hotels from having to pay copyright fees for music played in hotel bedrooms.

The PPI wants to charge €1 per bedroom per week. With around 50,000 hotel bedrooms nationwide, it estimates it is losing some €2.6 million annually. The PPI claims the Copyright and Related Rights Act 2000, which provides the disputed exemption, is contrary to EU law.

Section 97(1) of that Act provides there is no infringement of copyright where recorded music is heard “in part of the premises where sleeping accommodation is provided for the residents”.

Last October, the High Court directed that the issue of whether the State is in breach of its obligations under European law should be decided prior to any claim for damages.

Yesterday, in an interim ruling in the proceedings, Ms Justice Mary Finlay Geoghegan said she believed it was necessary to refer a number of questions in the case to the ECJ.

Among the issues the ECJ will have to decide is whether a hotel operator, as a result of providing TVs and radios in guestrooms, is a “user” of copyrighted music that can be played in a broadcast for the purposes of EU directive 2006/115/EC.

If the operator is such a user, the ECJ will then have to decide whether the same directive require the operator to pay a charge additional to royalties already being paid by TV and radio station operators.

The ECJ also has to decide whether hotel operators are exempt from such payments on grounds the playing of such music is for “private use” as provided for under the same directive.

A further issue is whether the directive permits the exemption of hotel operators from paying if the music is played by means other than TV or radio.

Ms Justice Finlay-Geoghegan said she would give the parties an opportunity to examine her interim judgment before making further orders and she adjourned the matter to next week".

This decision is not yet on this year's Irish High Court bit of BAILII. This is not the first time that copyright and hotel rooms have been considered by Europe's top court. In Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, the court ruled that,

"While the mere provision of physical facilities does not as such amount to communication within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the information society, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of that directive.

2. The private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29".