By Rachel Kramer, FIPR, with contributions from Robert Clark, Eoin O'Dell, Martin Keegan and Liam Herrick.
Ireland has not yet transposed the Copyright Directive into national law, and no draft text of any such implementation has been made public. There is a declared intention to transpose by statutory instrument (SI) by mid-2003, but little evidence exists for this intention. The current Government Legislation Programme, commencing May 7, 2003[1], has no reference to the Directive or copyright legislation.
The office responsible for drafting the SI is the Intellectual Property Unit of the Department of Enterprise, Trade & Employment (DETE[2]), and the primary point of contact for the Directive is Tony McGrath. The Intellectual Property Unit’s Web pages state that “draft instructions are currently being prepared for the Attorney General's Office which will enable Ireland to fully transpose this Directive into Irish law.”[3]
The transposition will likely be minimalist for a number of reasons. First, in many respects Irish law is already compliant. Directives from 1991—1996 already in place are TRIPS compliant, the 1996 treaties are ratified, and all these directives are incorporated in the Copyright and Related Rights Act 2000[4]. The expected SI to implement the Directive is not expected to alter the 2000 Act to any great extent. Second, Irish Constitutional law restricts the freedom of a Minister to legislate by SI, so many of the options available in the Directive may be closed off by the choice of SI as the transposition means. Thirdly, the 2000 Act required Herculean effort, which no one wants to repeat in the transposition of the Directive. Although passed earlier, the 2000 Act tried to anticipate the requirements that would be present in the Directive.
Typically
Ireland misses the deadline for transposing and implementing EU directives by
18 months to 3 years. Therefore, the
missed deadline for the Copyright Directive implementation comes as no
surprise.
Current copyright law in Ireland is among the most liberal in Europe. Therefore, most of the exceptions in Article 5 are already available to users. It is not clear how the resulting SI will specifically address the Directive exceptions.
Under current Irish law, any act to further the use of a copyrighted work under the premise of fair dealing is legal. It is not clear how the anti-circumvention restrictions in the Directive will affect this. It will be difficult to separate circumvention for the legal purpose of fair dealing from circumvention that illegally infringes copyright.
There is little in the existing law that directly addresses circumvention devices. The SI to transpose the Directive may change how the law targets the devices of circumvention or the intent to circumvent as an infringement of copyright.
The most relevant sections of the Copyright and Related Rights Act 2000 are:
Section 140 - Copyright Offences
Section 258 - Performance Offences
Section 370 - Rights Protection Measures: Devices designed to circumvent protection
Section 374 - Non-interference of rights protection measures with permitted acts.
The
relevant sections pertaining to interoperability and research are:
Chapter 6 - Acts permitted in relation to works protected by copyright
Section 50 - Fair dealing: research or private study
Section 81 - Lawful copies of computer programs
Chapter 8 - Acts permitted in respect of database right
Section 329 - - Fair dealing: research or private study
Under the 2000 Act, protection of free speech and privacy issues are generally technology-neutral, meaning that specific reference to technology is not included in the act. Therefore certain acts that exercise free speech would be considered legal, but in practical terms they may still be prohibited by technological protection measures that limit access to material.
The Directive is generally without prejudice to data protection laws. Issues regarding privacy relate to digital rights management systems. The nature and functionality of these systems is a technical issue, but they could be used to monitor access to and use of copyright materials. The Directive recognises that a possible consequence of managing rights in this way could be that patterns of use (either online or offline) of certain material could be tracked and/or recorded. The aim is therefore to ensure that technical standards comply with the data protection principles in the 1995 Directive and national data-protection law.
The public debate in Ireland concerning the Copyright Directive has been deafening in its silence. As the treaties and directives of the 1990s were being passed there was also very little debate regarding their impact on copyright law.