As Europe debates the balance of intellectual property rights in the wake of ACTA, Ireland is taking comments through the end of this month on a paper it published on copyright and innovation.
Despite the various pressures to increase copyright enforcement online without due regard for negative side-effects, it is very encouraging to see that various Member States take the seemingly opposite route: they engage in serious debates of how a more flexible IPR regime can spur creativity and innovative output.
Currently, one of the most advanced developments can be seen in Ireland. Last year the Irish government set up the Copyright Review Committee, which published a Consultation Paper on copyright and innovation this year. This paper remains subject to a public consultation until the end of May 2012. In tune with Member States like the UK and the Netherlands, the paper rightly asks in how far a modernization and adaptation to copyright laws to the digital age can incentivize innovations.
In this context, it is very encouraging to see that the Committee places ‘innovation intermediaries’ at the heart of innovative advancement. They “facilitate innovation by bringing together a range of different players to […] co-ordinate innovation” and technology in particular “can facilitate the potentially vast area of collaborative innovation, by bringing the various players together online.” However, if technology is to play that role up to date copyright laws are indispensible. To this end, the Review Committee brings forward a couple of important proposals.
A key point is the Committee’s conviction that the incorporation of
all the exceptions and limitations to copyright contained in the Copyright
Directive into Irish law will lead to an overall net gain to innovation, and
digital innovation in particular. As one example the committee cites the
services offered by search engines which can be subject to copyright
infringement due to the quotation of even a small few words.
The Committee is very outspoken about such anachronisms between the
law and the reality of the Internet. It clearly sees search results as a new,
original work that is substantially different from the websites quoted and
linked to. “Not only does this search not conflict with the normal exploitation
of the websites being quoted and linked to, or unreasonably prejudice the
legitimate interests of the owners of those sites, the potential of driving
internet traffic to those sites is a benefit to them”. Online search is just
one example of online innovation and a key function of the law must be to allow
future innovations that no one even thinks of at this point in time. The
Committee recognized that exceptions and limitations to copyright are crucial
in this respect since copyright law should not stifle innovative business
In contrast to the proposals in the Netherlands and the UK, it is
interesting to see that the Irish Review Committee is far more receptive to a
‘fair use’ concept as found in the US legal tradition. Against the background
of both Ireland’s shared common law heritage with other EU Member States and
their common EU membership, it doesn’t see why a transplant of the doctrine
should fail per se. This statement
itself is already indicative of the Committees strong persuasion that the
country is in need of fundamental copyright reform to not only adapt the laws
to the digital era but also to possibly gain a long-term competitive advantage
over other countries in the European and international context.
What is needed at this point is more empirical evidence in how a more
flexible copyright regime drives innovation and economic growth as requested by
the Review Committee. In the last years CCIA has published studies in the
European as well as in the US context concerning the considerable economic contribution
relying on exceptions and limitations to copyright and the fair
use doctrine in the EU and US respectively. These studies clearly show that
creativity and innovation do not only rely on strong IPRs, but also to a great
extent on exceptions and limitations to these exclusive rights. Ireland’s
consultation paper is a big step in the right direction. Hopefully other Member
States will show the same amount of courage.