The first part of this post is a reply to an article by Frank Cullen in the irishtimes.com 20/12/2011 and the second part is Frank’s article, this article is published in the public interest and hopefully helps the public understand the reality of copyright law in Ireland.
Frank, nice piece of writing, I was tempted to copy it to my Blog but then thought.....better not....Frank is on the war path....The reality Frank is somewhat different than you paint, the majority of newspaper content in 2011 is made up of press releases issued by Government Departments, Opposition Parties, Garda Press Office, HSE, RSA and so forth.....the majority of books produced by 'journalists' are the re-scribing of court transcripts, garda press releases, un-named sources and so forth.....the biggest copyright court case to come before the Irish Courts in 2011 was the Mail 'copying' the deflated Sunday Tribune.....the biggest Liable cases have involved RTE making false accusations against a Priest and Neil making false allegations against former Minister Harney......while I honestly believe that copyright is important, it is not so important as to offer protections to those who abuse its very essence, it is not so important as to offer protection to those who simply print the work of others and claim copyright.......How can a newspaper add a copy right symbol to a press release from the Garda Press Office when I recieve the same press release to my mail box at the same time....for too long newspapers and in particular the lurid tabloid press has got away with copyrighting 'unnamed sources'...court transcripts....lies and half-truths.....I personally think the work of Joyce and Sean O Casey warrant copyright......however....the daily dribble of the copycat media does not merit such protection.....Nollaig Shona agus Bliain Nua joyous 2011© (only joking).
Irishtimes.com 20/12/2011
OPINION: The function of intellectual property rights is to encourage innovation by valuing originators of creativity, writes FRANK CULLEN
THOSE CALLING for the “liberalisation” of Irish copyright law should remember the importance of protecting the existing, indigenous businesses that create original content.
Copyright law has been around for nearly as long as the printed word itself. It’s a fundamental protection for creative work, designed to ensure that original content, like music, photography or this newspaper article, is not unfairly exploited by others.
Within most copyright legislation, including Irish law, there is available an exemption; a “fair dealing” doctrine that allows people to use certain content for the purposes of research, private study, criticism or review. Furthermore, Irish law provides for other copyright exemptions in relation to education, libraries and other matters. These exemptions only apply to non-commercial use. They are not, and never have been, designed to enable people or companies to profit from other people’s work.
For this reason, mainly, the current review of copyright legislation, initiated by Minister for Enterprise, Jobs and Innovation Richard Bruton, is causing a great deal of anxiety across a number of business sectors – including the newspaper industry.
For starters, valid questions are entitled to be asked about the review itself. Ireland’s copyright law is a thoroughly modern piece of legislation; it is barely 10 years old. If we were talking about legislation that was enacted before the internet age, a review would certainly be necessary. But the focus of this review seems unnecessary, puzzling even.
Nevertheless, the Copyright Review Committee appointed by the Minister has started its work. There are concerns, however. The biggest one for newspaper publishers relates to a statement made by the Minister, namely that a key focus of the review will be to identify any areas of copyright legislation that are “perceived to create barriers to innovation”.
According to the Minister, there is “a perception in certain industries that national copyright legislation does not cater well for the digital environment and actually creates barriers to innovation and the development of new business models”.
This is curious. How can copyright be perceived as creating a barrier to innovation? Copyright, and other intellectual property rights, are precisely the opposite of barriers to innovation. By valuing and protecting people who create original works – musicians, journalists and so on – the very function of copyright is to encourage and facilitate innovation.
It’s also curious that nobody has clarified what those “certain industries” are, or identified which businesses within them have decided that copyright represents a barrier to innovation. But it’s clear that this review, which could have untold consequences for indigenous, content-creating businesses (and individuals) in Ireland, has been prompted by a powerful lobby group that is aiming to persuade the Government that change in this area is needed.
And, since the committee has been specifically tasked with examining the US legislation to see “if it would be appropriate to an Irish EU context”, it appears the persuasion process is well under way. The very fact that the US “fair use” doctrine is being considered for Ireland suggests an assumption that our existing copyright law does indeed constitute a barrier to innovation – and needs to be changed. This is not the case.
In the US, “fair use” is a policy that permits use of copyright material without the need for permission from the owner of the copyright. In any particular case, it involves considering four factors to determine whether “fair use” applies and so whether the content can be reproduced without the owner’s permission. These factors are: purpose of use, nature of the work, amount of the work to be used, and the effect of use on the value of the work.
The first thing to say about the “fair use” doctrine is that it can be very unclear. In the US, it has resulted in increased litigation which has so far failed to clarify what is permissible. Fair use would open up a goldmine for lawyers.
Introducing a “fair use” doctrine would also considerably dilute the protection and rights afforded to creators of original content, including the newspaper industry. If newspaper publishers cannot rely on a certain degree of copyright protection for their work, the impetus to invest in quality journalism and disseminate content online would dramatically reduce. This would have a devastating impact on the newspaper sector as well as on other creative sectors.
Those pushing for a change to our copyright legislation often enthuse – unjustifiably – that it would be attractive to inward investment. The decision-makers need to tread carefully here, and ensure that trying to attract investment does not come at the expense of existing jobs and tax take.
None of this is to suggest that newspapers wish to exercise a veto over the use of their content: quite the opposite. There are already a number of ways under existing Irish copyright law in which people may use newspaper content, protected by copyright, without the approval of the publisher/copyright holder – for purposes including education, research or science – and no one would argue with the good reasons why the law provides those exceptions.
Equally, newspaper publishers have no difficulty with their content being used for commercial purposes by other organisations (including technology companies) provided they have been consulted, and as long as a reasonable fee can be agreed.
There is already a sophisticated licensing system in place, via Newspaper Licensing Ireland, making it easy, affordable and transparent for organisations to be licensed to use newspaper material which is protected by copyright. Newspapers welcome the idea that others would wish to use their copyright material, but when others use that material for commercial gain – as search engines and aggregators are doing – surely they should first seek permission from the publisher, as the law requires?
The debate about copyright is not, therefore, about technology industries versus the creative sectors. It’s about remembering why intellectual property rights, including copyright, exist in the first place, and why they serve a very important service in business, society and culture.
If we succumb to the push to declare content placed on the internet as fair game for use by all and sundry, we are jeopardising future creativity – and a lot more besides.
Frank Cullen is the co-ordinating director of National Newspapers of Ireland, which represents national, local and regional newspapers, including The Irish Times.
