knowledge 30 July 2019 |

Copyright in Ireland – A Step Towards a Modern Regime

It modernises the law in a number of respects and bolsters the position of rights holders in light of technological developments in the digital age. Certain provisions of the 2019 Act also reflect aspects of Directive (EU) 2019/790 on Copyright in the Digital Single Market (“the CDSM Directive”), though the 2019 Act does not refer to the CDSM Directive and substantial further implementing legislation will be required.  While the 2019 Act is broad and wide-ranging in its scope, this note primarily focuses on three of the changes it introduces: the term of protection for copyright for designs/industrially exploited artistic works; defences to copyright infringement including the extension of the “fair dealing” exception; and the provisions of the 2019 Act that purport to extend the jurisdiction of the District Court and Circuit Court to hear “intellectual property claims”.

Copyright in Designs / Industrially Exploited Artistic Works

The 2019 Act repeals section 31A and section 78B of the Copyright and Related Rights Act 2000 (as amended) (the “2000 Act”) which provide for shorter (25 years) terms of copyright protection for registered designs and artistic works that have been exploited by making products by an industrial process, respectively. By increasing the term of protection for those works to life of the author plus 70 years, the 2019 Act will bring Ireland into line with the position in other EU Member States and into conformity with a 2011 judgment of the CJEU.¹ The disruptive impact of these changes, whereby previously lawful dealings in certain products - replica designer furniture products is a typical example – would become unlawful, is to an extent mitigated by a transitional period of twelve months, comprised of an initial period of six months during which sections 31A and 78B will remain in force and a further period of six months during which otherwise infringing acts carried out further to pre-existing contracts will be permitted. Companies that have modelled their business on the shorter period of copyright protection for the products caught by these provisions may need to take steps to ensure that they are not infringing once the transitional periods have expired.

Exceptions to Copyright Infringement

The 2019 Act has modernised and expanded the existing “fair dealing” exceptions to copyright infringement.  Most significantly, the 2019 Act introduces a fair dealing exception in respect of “caricature, parody or pastiche”. This is one of the exceptions that was permitted under the Info Soc Directive and is required under the CDSM Directive in respect of the uploading and making available of content generated by users on online content-sharing services. This exception seeks to strike a balance between the rights of authors and rights holders and freedom of expression in the context of the internet.  It remains to be seen how this exception will be implemented under Irish law, though as it arises under the broader heading of “fair dealing” the exception will only apply to the extent that the use is for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright.²

The 2019 Act also implements a number of education-focused exceptions to infringement, intended to reflect modern society’s learning methods, including in respect of distance learning³ and use of online materials.⁴ Research based exemptions have also been updated to reflect the digital age and the increasingly important role of data analytics, including provisions in respect of “data mining” for non-commercial research.⁵ The 2019 Act also improves the rights enjoyed by libraries and archivists, including in providing for “format shifting”, i.e. making copies in different form for the purposes of preservation of those works.⁶

Relatively minor changes have been made to the reporting current events exceptions to copyright infringement and, notably, the position in respect of press publications and hyperlinks, which has been the subject of recent CJEU case law,⁷ and which has been taken a step further by Article 15 of the CDSM Directive, is not addressed by the 2019 Act.

Jurisdiction

An unusual amendment to the 2000 Act is the insertion of sections 16A and 16B which grant jurisdiction to the Circuit Court and District Court, respectively, to “hear and determine intellectual property claims.” An “intellectual property claim” is defined in the 2019 Act as any proceedings etc. under the 2000 Act, the Patents Act 1992, the Trade Marks Act 1996 or the Industrial Designs Act 2001 subject, however, to a number of key sections of those Acts being excluded from the definition. Crucially, in the case of patents the sections providing for infringement and revocation actions are excluded, save for a peculiar carve out which now allows the lower courts to hear an action for infringement of a published application, and in the case of trade marks actions involving validity are excluded. Finally, proceedings in respect of copyright and registered designs have been possible in the lower courts prior to this amendment. In practice, therefore, the amendment is likely to have a limited impact. Looking forward, further measures aimed at facilitating access to the lower courts for intellectual property claims may be warranted.

Other Changes

A somewhat curious provision is the new 375(1)(b) of the 2000 Act which grants to a person lawfully issuing to the public copies of a work (or lawfully communicating to the public the work) the same rights as the rightsowner in respect of an infringement of copyright. Section 375 falls in Chapter 2 (Rights Management Information) of Part VIII (Technological Protection Measures) of the 2000 Act, and yet on its face purports to extend copyright enforcement rights, generally, to a potentially wider cohort of people than owners and exclusive licensees.

Amongst the many other changes introduced by the 2019 Act are a new definition of “film”, to include the accompanying soundtrack, a new and more fit-for-purpose purpose definition of “broadcast”, an extension of fair dealing in respect of performances and the provision of a number of additional circumstances requiring a “sufficient acknowledgement” to a work’s author.

Comment

The 2019 Act undoubtedly introduces a number of significant changes that go a long way towards modernising the copyright regime in Ireland. Nevertheless, it is apparent that many provisions of the CDSM Directive – which has itself been the subject of criticism and debate – remain to be implemented.   As technology and commercial practices constantly evolve, the process of establishing a modern or fit-for-practice copyright regime will inevitably remain an ongoing one.