E Law Developments: Copyright Law Southern Law Association event, Cork, September 2019 Darius Whelan, School of Law, UCC IT Law Clinic https://www.ucc.ie/en/law/courses/

1. E Law Developments
•Copyright Law
Darius Whelan, School of Law, University College Cork
Southern Law Association Event, Cork, September 2019

2. Copyright Review Committee (CRC)
Consultation Paper 2012
Report 2013
Act - Copyright and Other Intellectual Property Law
Provisions Act 2019 [not yet commenced] [passed 26 June
2019]
2

3. 3
•Consultation Paper, February 2012
•Examples of questions raised:
•Does copyright law inhibit the work of innovation
intermediaries?
•Should a broad fair use doctrine be adopted?
•Should all of the exceptions permitted by the EU
Copyright Directive be incorporated into Irish
law?
•Should a Copyright Council of Ireland be
established?

5. Linking
•CRC Report recommended that linking should not infringe
copyright, except where the provider of the link knew or ought to
have been aware that it connects with an infringing copy.
•Report recommended that it should not be an infringement of
copyright to reproduce:
• a very small snippet of the linked work reasonably adjacent to the link,
• (No more than either 160 characters or 2.5% of the work, subject to a cap
of 40 words)
•This proposal regarding linking did not make its way into the
Copyright and Other Intellectual Property Law Provisions Act 2019.
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6. Metadata in photographs

7. Metadata in photographs
•Metadata can provide information about the date and time the
photograph was taken, about the exposure and other camera
settings, identify the photographer, supply copyright and contact
information, and so on.
•This data may be embedded in the photograph file and invisible to
novice users, but easily discoverable by those with more technical
knowledge.
•The Copyright and Other Intellectual Law Provisions Act 2019
expressly protects metadata.
•See the definition of ‘rights identifying information’ in the Act and
the other reference to ‘rights identifying information’ later in the Act.
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8. Fair Dealing
•CRC report proposed major expansion of fair dealing
in Ireland
•2019 Act does not implement this proposal
Image by Hugh Stephens

9. Other elements of 2019 Act
•Expands the education exception to allow the use of
digital works in the classroom or through access to secure
school and university networks (s.15, amending s.57)
•Provides a new exception for text and data mining for
non-commercial research (s.14, inserting s.53A)
•Makes it an infringement to tamper with metadata
associated with works (s.38, inserting s.377).
•Extends the concept of fair dealing for purposes of news
reporting (s.22, amending s.89)
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10. • Creates an exception for use of copyright works to allow for caricature, satire
and parody (s.13, amending s.52 of the CRRA 2000)
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11. •Expands the disability exception to allow use of new technologies to
adapt works to the needs of persons with a disability (sections 25-
27)
•Allows libraries, archives and educational institutions to make copies
of works in their collections for preservation purposes and for
catalogues for exhibitions (ss.18-19)
•Amends the term of protection for copyright in designs from a 25-
year term to life of the creator plus 70 years (s.2 repeals + ss.9 and
21)
•Extends the jurisdiction of the Circuit Court and District Court to
include IP claims
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12. •Directive 2019/790
•To be implemented by Member States by June 2021
Directive on Copyright in the Digital Single Market
(CDSM Directive)

15. Press publishers
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17. Press Publishers’ Right (Art. 15) [“Link tax”]
•A new ‘related right’ / ‘neighbouring right’
•Press publishers must have rights regarding the online use
of their publications by information society service
providers
•Duration: Two years
•Does not apply to very short extracts
•Does not apply to hyperlinks
•Does not apply to private or non-commercial use by
individual users
•Author must receive appropriate share of revenue 17

18. •Aimed at news aggregation services such as Google
News
•Nothing explicit about whether rights can be waived
(e.g. with Google News)
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19. Use of protected content by online content-sharing
service providers (Art. 17) [Upload Filtering]
•Online content-sharing service providers must make best
efforts to secure a licence to cover their and their users’
activities [+ other rules]
•Must make best efforts to ensure unavailability of
protected matter
•Does not apply to:
•not-for-profit encyclopaedias; educational repositories, etc
•If turnover low (<€10m) + operating less than 3 years,
requirements are somewhat lower
•Does not apply to caricature, parody, pastiche, quotation,
criticism, review
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20. Other aspects of the Directive
•Exceptions regarding text and data mining
•Exception regarding digital education (but member
states may limit this)
•Cultural heritage institutions – preservation
•Faithful reproductions of works of visual art which are
out of copyright are in the public domain
•Out of commerce works
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21. Redesigning
Copyright?
Support and Encourage Open Access /
Creative Commons licences
Widen exceptions to copyright – fair
use / fair dealing / content mining
In reform discussions, involve civil society
and activist groups
Formalities for copyright may need to be
re-introduced
Express provision for non-commercial
re-use / remixing
Redesign the Berne Convention

22. d.whelan@ucc.ie
www.ucc.ie/law/courses/