On 1 January 2001, we didn’t have Facebook or Twitter. YouTube, SoundCloud, Spotify and iTunes had yet to exist. None of these services saw the light of day until after the Copyright and Related Rights Act, 2000 came into effect.
“Realistically, drafting the legislation in 1997, ’98, ’99 and publishing it in 2000 meant they couldn’t possibly envisage all that would happen," said Dr Louise Crowley, senior lecturer at the Faculty of Law in University College Cork (UCC), who describes Ireland’s 13-year-old copyright act as "outdated" given the technological developments that have arisen since.
“It’s a little bit like a square peg and a round hole – the law and the practice just doesn’t fit," she said.
Under these circumstances, it’s no surprise to Crowley that breaches occur, as people try to judge how to behave within the law while working in a medium that didn’t exist when it was created.
For example, under the 2000 Act, hyperlinks to referenced articles – a common practice in online writing – could be considered an infringement of copyright.
“Practice is not a defence if you’re suddenly involved in litigation for an alleged breach of copyright, so clarity, absolutely, is what’s needed so the law can reflect what’s happening," said Crowley.
The copyleft movement
Where copyright has failed to meet the needs of both users and creators of content, ‘copyleft’ has stepped in to address the problem.
One example of this is Creative Commons (CC) licensing, which offers content creators a way to protect their works and encourages their re-use in ways the rights-holder allows. This declaration of ‘some rights reserved’ provides a middle ground of fair use between complete restriction and total public domain availability.
There are six CC licences in all, the most basic of which demands attribution when a creator’s content is shared. There are then varying degrees of control offered by the remaining five licences, permitting or restricting commercial use or the creation of derivative works.
UCC’s Faculty of Law is the California-based Creative Commons Corporation’s Irish partner. Crowley and her fellow lecturer Dr Darius Whelan led the team that, in February 2012, published a localised suite of Creative Commons licences specifically for Ireland.
These specialised licences ensure if an Irish person is relying upon Creative Commons to make their work more available, they can do so in compliance with the existing Irish statutory framework. These licences are free and provide a simple, standardised way to give the public permission to share and use creative work on conditions of the artists’ choosing.
In October 2013, the Copyright Review Committee established over two years previously published its report, Modernising Copyright, which Crowley describes as both detailed and promising.
“They have teased out many of the issues and created what could be the starting point of new legislation," she said, alluding to the draft bill the committee coupled with the report.
The team of Dr Eoin O’Dell, fellow and senior lecturer in law at Trinity College Dublin; Patricia McGovern, chairperson and head of the Intellectual Property Department and the Corporate and Commercial Department at DFMG Solicitors; and Prof Steve Hedley, dean of the Faculty of Law at UCC, have used their expertise to complete a lot of the groundwork needed to fix Ireland’s misshapen copyright laws.
Yet, even if lawmakers put this draft bill on hold, Crowley believes international developments will necessitate change.
“Our 2000 Act came in because we were under pressure to amend our laws back then," she said. "As issues develop at a European level, that too will force the hand of lawmakers to modernise our legislation."
Last week, the EU closed its public consultation on the review of its copyright rules. "It is a slow, slow process but I think that change is undoubtedly down the line because it’s absolutely mandated," said Crowley.
Whether the EU forces our hand or the Irish legislature moves forward with the recommendations of the Copyright Review Committee, change is going to come – and Crowley believes this will be welcomed, despite the detractors.
According to Crowley, much of the opposition to copyleft comes from those who are invested financially in creators and who expect remuneration. This financial backing supports creators developing their craft, yet modern technology threatens the protection afforded to these investors.
“Where technology allows for much greater access – lawful or not – obviously, those investing are losing out," said Crowley.
Yet Crowley doesn’t think technology should only be seen as a threat to the protection of rights if lawmakers take a reasonable approach.
“Copyright law and IP law, generally, is about balance. It’s about the rights of the creator, primarily, but, equally, the rights of the user; the right of society to be able to access new and innovative expressions of ideas," she said. "In order to ensure that that balance is properly maintained, the law has to change, too."
A version of this article appeared in The Sunday Times on 9 February