Written answers

Wednesday, 29 September 2010

Department of Enterprise, Trade and Innovation

Copyright Laws

11:00 pm

Photo of Richard BrutonRichard Bruton (Dublin North Central, Fine Gael)
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Question 1735: To ask the Minister for Enterprise, Trade and Innovation if his attention has been drawn to the difference in approach between the USA and the EU in respect of the right of electronic search and network companies to make use of material under copyright protection, with the USA permitting fair use so long as it does not interfere with the commercial model of the copyright holder; and if he will consider taking initiatives at EU level to get EU law aligned to that in the USA to maximise the opportunity for European countries to participate in the digital market. [32207/10]

Photo of Conor LenihanConor Lenihan (Dublin South West, Fianna Fail)
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I can confirm that my attention has been drawn to the difference in approach in the EU and the USA in relation to exceptions and limitations to copyright and "fair use" in particular.

I should also mention that I have been approached by copyright and related rights owners who are concerned that their national and international rights are being eroded, especially in the digital environment.

The issue concerned, in the broadest terms, is the difficult question of the delicate balance intrinsic in copyright matters. On the one hand, owners of copyright and related rights are anxious to protect their rights and to obtain a fair return for their efforts; on the other hand, users are concerned to have reasonable access and use of copyright material.

In the European Union, a series of Directives on copyright harmonise the copyright laws of Member States and comply with international treaties. The directive that is most relevant to copyright exceptions is the Information Society Directive [Directive 2001/29/EC] which obliges Member States to provide for exclusive rights. It also introduces a regime of compulsory and permitted exceptions to these rights. A technical reproduction exception is mandatory, while Member States may provide for the remaining listed exceptions at their own discretion.

Copyright law in the United States contains exceptions and limitations that allow specific uses of copyright material. However, United States copyright law is exceptional among that of comparable jurisdictions in that it has an open-ended 'fair use' exception that is not restricted to specific purposes. This has led to a certain lack of clarity as to what are the exceptions, with the result that exceptions to copyright in the US have generally been defined by the courts. Ireland — in common with the UK (the source of the common law approach both in the Irish and US jurisdictions) — while complying with EU law, adopts a middle course in dealing with this issue. The Copyright and Related Rights Act 2000 allows specific exceptions in relation to education, libraries, archives, public administration, disability, incidental inclusion etc. Sections 50 and 51 of the Act also provide exceptions in relation to "fair dealing" for research, private study, criticism or review to an extent which will not unreasonably prejudice the interest of the owner of the copyright.

If a US-style 'fair use' type provision were to be adopted in Europe, it could result in a wider range of purposes being regarded by the courts as falling within an exception. There are likely to be widely varying expectations about what these additional purposes might be. These would probably then have to be determined on a case-by-case basis by the relevant court(s). It is possible that courts operating in 27 independent legal systems might well take different approaches. Technological protection measures and digital rights management arrangements would also have to be taken into account.

The issue of scope of exceptions and limitations is currently being discussed in the European Union as well as in international intellectual property fora such as WIPO (World Intellectual Property Organisation). It is recognized that while the digital era presents opportunities in this respect, it also contains difficulties which have to be addressed. The EU copyright model of prescriptive exceptions is seen as a fair and transparent model. Further exceptions may be added where appropriate.

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