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DIGITAL RIGHTS IRELAND LTD.
REGISTERED NUMBER 410355
REGISTERED OFFICE: 10 CASTLE HILL, BENNETTSBRIDGEROAD, KILKENNY
EMAIL: INFO@DIGITALRIGHTS.IE
DIRECTORS: TJ MCINTYRE, COLM MACCARTHAIG
H, ANTOIN O’LACHTNAI
N
Dr. Eoin O‘Dell
Chairman, Copyright Review CommitteeRoom 517, Department of Jobs, Enterprise and Innovation,Kildare Street, Dublin 2.Wednesday, July 13, 2011
Via email: copyrightreview@djei.ie
Submission on behalf of Digital Rights Ireland Ltd.
De
ar Dr. O‘Dell
Digital Rights Ireland
(―DRI‖)
welcomes the opportunity to respond to the call forsubmissions to the Copyright Review Committee. DRI is a not for profit company which wasestablished for the purpose of defending civil rights in a digital age. The author is chairman of DRI, a lecturer in the School of Law, UCD and a practising solicitor specialising in issuesinvolving information technology and online business. This submission reflects the pointsraised by individuals who have contacted DRI and also the issues encountered by the authorin research and private practice.
Impact on fundamental rights
Copyright is not merely an economic issue but also an issue which impacts on other keyfundamental rights. Of its nature, copyright involves conferring the power on one party tolimit the communications of others. Consequently this restriction on freedom of expressionmust be kept in mind in determining whether any particular aspect of copyright law is aproportionate measure towards protecting the legitimate economic interests of creators, and isof particular importance when considering the scope of the copyright exceptions.
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In addition, to an increasing extent copyright enforcement measures now present furtherproblems for fundamental rights. Numerous international measures
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notably the provisionsof the Telecoms Reform Package
1
–
have recognised internet access as a fundamental rightwhich is very closely related to the rights of freedom of expression and access to information.However, these rights are threatened where steps are taken to disconnect users or block accessto websites, particularly where this is done in an extra-judicial context without a legal basis orfair procedures. The rights to privacy and confidentiality of communications are alsoimplicated where attempts are made to force intermediaries to monitor the activities of internet users. These rights must also be taken into account in determining whether particularenforcement measures are reasonable and proportionate.
Fair use
DRI supports the introduction of a general fair use doctrine into Irish law, whileacknowledging that the constraints of the Information Society Directive will require action atan EU level before this can be introduced.
2
Nevertheless, before going on to consider theextent to which Ireland is free to maneuver within the parameters of that directive, it may bedesirable to consider a specific point commonly made in relation to fair use.It is sometimes said that a fair use doctrine tends to produce uncertainty. This complaint,however, misunderstands the nature of legal principles and demands a level of certainty as tothe outcome of litigation which is beyond the capability of the legal system. Whenever a courtis called on to apply general principles to the facts of individual cases
–
whether in thecontext of fair use, existing fair dealing exceptions or even the duty of reasonable care innegligence
–
it is possible that there will be a degree of uncertainty about the outcome. Thisis, however, no fault of the legal principles involved but rather reflects the fact that humaninteractions are so diverse that no rule can anticipate every possible case. This is particularlyso in the area of technology where rapid developments mean that rules which are technologyspecific become outdated very quickly.
1
In particular article 1 of Directive 2009/140/EC.
2
Assuming that article 5 of Directive 2001/29/EC is intended to be exhaustive.
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Consequently, the open-ended nature of the fair use doctrine must be considered as a positivefactor, particularly insofar as it facilitates innovation. The alternative
–
specific fair dealingexceptions
–
creates a situation where the law will lag behind technology and will give rightsholders an effective veto on the development of new products and services. In this regard,DRI would refer to and adopt the comments made by Google in its submission to theHargreaves Review, where it notes that:
―Without a robust fair use doctrine… many of the online platforms for creativity and research that we
take for granted might never have made it off the ground. MP3 players such as the iPod, VCR and DVDplayers, and search engines such as Google are all fundamentally grounded in the US Fair Use regime
that enables innovation.‖
3
DRI therefore recommends that steps are taken to pursue the development of a fair useexception at EU level.
Developing domestic fair dealing exceptions
DRI would refer to and adopt the conclusions of the Hargreaves Review in relation todeveloping domestic copyright exceptions so far as permitted by the Information SocietyDirective, in particular the recommendations that specific exceptions are adopted in respect of format shifting, parody and pastiche.
4
Database Directive
In 2008 Prof. James Boyle said of the Database Directive that:
―The facts are now in. If the European Database Directive were a drug, the government would be
pulling it from the market un
til its efficacy and harmfulness could be reassessed.‖
5
3
At p. 5.
4
Hargreaves,
Digital Opportunity: A Review of Intellectual Property and Growth
(HMSO, 2011), pp. 48-50.
5
Boyle,
The Public Domain
(CSPD, 2008), p. 217.
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