Modernising Copyright – A Work In Constant Progress!

In March 2018 the Irish Government published a bill that if adopted will implement some of the recommendations of the report of the independent Copyright Review Committee that was published in late 2013.  The bill is described in the press release as being “intended to make better provision for copyright and other intellectual property (IP) protection in the digital era and to enable rightholders to better enforce their IP rights in the courts”.

It covers a broad range of rights and aims to ensure that Ireland complies with several of its international obligations as well as opening up the prospect of IP rights enforcement in the lower courts.  The result is a panoply of changes ranging from digital exceptions in the sectors of education, research and disability, to a broadening of the fair dealing provisions in connection with parody and news reporting and even preventing the tampering of metadata in photographic works.  This was the opportunity to embark upon an ambitious re-write of copyright for the digital age in parallel with the European digital single market reforms, however it has ended up as something of a hotch-potch of potentially important and miscellaneous changes

Key copyright related changes are noted below:

  • expanding the education exception to allow the use of digital works in the classroom or through access to secure school networks, such as students using school iPad at home to access material held in school databases or for watching lectures over the internet;
  • expanding the research exception and making provision for data analytics through a new exception for text and data mining;
  • facilitating persons with a disability getting access to works by expanding the disability exception to use new technologies to adapt works to the needs of persons with a disability, allowing persons with a disability or authorised entities to make necessary adaptations to books, audio-visual works or other copyright work themselves using modern technologies;
  • creating an exception for use of copyright works to allow for caricature, satire and parody;
  • extending the concept of fair dealing in copyright works for purposes of news reporting;
  • making it an infringement, in the context of photographs, to tamper with metadata associated with the photographic works;
  • allowing libraries, archives and educational institutions to make a copy of a work in its collection for preservation purposes and for catalogues for exhibitions etc.;
  • amending the term of protection for copyright in designs from a 25-year term to life of the creator plus 70 years, in order for Ireland to comply with its international obligations.

In addition, the Bill extends jurisdiction of the Circuit Court and District Court to include “intellectual property claims”.  This change is intended to allow rightsholders to bring civil proceedings for lower value intellectual property infringement claims within the relatively low jurisdiction limitations of those courts.  While the aim of providing redress for lower value intellectual property claims is laudable, there are inherent practical difficulties in doing so, mainly because of the complex nature of the underlying rights and of the resulting litigation.

To achieve efficient, cost effective and consistent outcomes resulting in a minimum of expensive higher court appeals, it is essential to have specialised or appropriately trained judges who have a mandate to case manage and streamline cases in a fairly autonomous way.  By way of example the UK’s Intellectual Property Enterprise Court has operated exceedingly well along similar lines for many years.  While in Ireland there is not the critical mass of intellectual property cases to support an equivalent and dedicated infrastructure, hopefully the Court Service will take on board that experience in implementing the new system.

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