On copyright

I’ve been reading Modernising Copyright, the report of the Copyright Review Committee (CRC), and decided to put my initial thoughts down in writing. Be warned, if you’re used to the 200 word bites on here, this article is considerably longer.

Colmcille

As is noted to the point of fatigue in Irish writings on copyright, the Irish invented the concept, according to half-legend. Specifically, Colmcille copied a psalter, the creator of the original objected, the case went to a High King for a decision, and the judgement handed down was “To every cow its calf, and to every book its copy.”
It says something that when the CRC chose to illustrate its front cover with an image from that 1500 year old psalter, they had to put in a copyright acknowledgement to the Royal Irish Academy. Particularly since in the original case of Finnan v Colmcille, no one argued that the words of the psalter were copyright. The argument was over the illumination, which Finnan argued he owned, and Colmcille argued he had improved.

Be that as it may, the legend annoys me, not because it may be unhistorical, but because, claims to the contrary aside (including one by Mr Justice Peter Charleton, who got it arseways) the case has nothing to do with modern copyright law, in Ireland or elsewhere. Brehon law was abolished in the early 1600s following the Flight of the Earls. If you want the historical basis of modern copyright, try the Statute of Anne.

Freelancing

A fortnight ago, I spent a day at the Freelance Forum, a one day seminar for freelance journalists.

Although I was aware that copyright law in Ireland is currently under review, the opening segment featured a guide to the practical application of copyright law.

Happily (or not), the proposed reforms from the CRC, published will have little impact on the advice given to practising and aspiring journalists at the Forum.

The simple truth is. for freelance journalists operating in Ireland, copyright management isn’t about legal rights, it’s about politics.

I’m an NUJ member. I spend a lot of time in rooms listening to (and helping to formulate) NUJ policies on copyright reform. So my opinions here are somewhat heretical. But frankly, I see a huge difference between the Irish and UK (or US) markets. In Ireland, the market is too small in favour of an independent creator, no matter what the law says. (All of which is probably helps explain why I left my submission to CRC to the last minute, and submitted an embarrassing coffee-fuelled rant as a result).

Realistically, the CRC terms of reference were never going to be friendly to freelance journalists, but the truth is, neither is the current copyright regime.

Okay, that’s not quite true. The current law gives freelances quite a lot of power, at least in theory, recognising their rights as creators. It just doesn’t make much of a difference in practice.

But Ireland is a small place. If (or when) freelance journalists are short-changed, they pretty much have to grin and bear it. Otherwise “you’ll never work in this town again…”

So two cheers for proposals to institute small claims through district (and even circuit) courts, and for a dedicated copyright claims court, and protections for image metadata. But it won’t have any material impact in my life. It may offer some comfort to publishers terrified of the internet, but it’s largely irrelevant to freelances.

The Copyright Council

The CRC centrepiece is the newly-proposed Copyright Council of Ireland, modelled on the Press Council, an “independent, self-funded organisation, created by the Irish copyright community, recognised by the minister, and supported and underpinned by clear legislative structures.”

The Press Council isn’t a great role-model, in my opinion. It is, in essence, despite the best of intentions, an industry dominated body, with a token NUJ presence.

And the Press Council just covers newspapers, more or less. The Copyright Council would cover press, books, radio, television, film, internet…

I’m not sure I want to think about the chaos that would ensue, as the NUJ, AIRPI, NNI, PPAI, RNAI, CRAOL, IBI, DRI and all the other acronyms jostle for places at that table.

To their credit, this outcome isn’t unforeseen by CRC. In fact, it seems to be their desired objective, in the hope that by crowding everyone into a room together, some sort of consensus (or at least a mutual understanding of each other’s positions) might emerge.

Still, if nothing else, it should provide for some free entertainment.

Link Love

I find it bizarre that CRC felt the need to explain that a hyperlink is not a copyright infringement.

The CRC also nods to the music industry and its desire to block torrent sites, recommending that publishers should not publish a link where they are (or should be) “aware that it connects with an infringing copy”.

Which is fine on one level, but what happens when an activist site links to criticism of Scientology? The Church of Scientology asserts copyright over what it claims are religious revelations, only to be revealed to certain members, and has sued to protect that copyright.

I’m sure there are other issues too. I suspect only the howls of laughter that would have followed (and an awareness of the Striesand effect) stopped someone in the NSA recommending a copyright suit against the Guardian when it started publishing all those powerpoint slides.

By the way, the following words appear nowhere in the CRC report:
“free speech”
“copyleft”
“creative commons”
“open source”

Though in fairness, the words “public interest” do show up on several occasions.

An oddity

An “intellectual property claim” means, among other things, “plant breeders rights”.

Does that mean pharmaceutical firms can copyright naturally occurring gene sequences and proteins? Or is it a protection for Monsanto?

Innovation

There’s an inevitable duality at the heart of CRC. It’s terms of reference quite clearly call for a consideration of copyright which will be more friendly in an increasingly digital environment, while reassuring old school publishers with recommendations on metadata, collections and court procedures, an independent council, and restrictions on quotation.

So it talks about protecting innovation.

If I understand this correctly, it means that I can’t write a programme to cut and paste copyrighted work into an email, and send you a bulletin. But what if I wrote an app which spoke to you, so that SIRI read to the headlines. Is the copyright holder then out of luck, because I’ve innovated?

Metadata

Not for the first time, I wish I was a photographer, not a scribe. Images are easier to identify when used without authorisation. Put simply, you can’t paraphrase a photo. That’s not to say images aren’t lifted without permission, but Image Search technology makes it harder, at least online.

Metadata protection is an idea I’ve heard before, from photojournalists and elsewhere. It’s not a bad idea, but like much else about copyright legislation, I’m not sure how useful it is without an international agreement. What use is protected metadata in Ireland once someone outside the jurisdiction lifts my image?

I wonder if CRC would consider the Google Author tag as metadata? That said, I’m not sure that would have any practical impact. From my understanding of the report and draft legislation, where the definition of metadata “does not include computer programs, and in particular does not include the program source code of websites”, the Author tag seems to be specifically excluded.

For that matter, in my limited understanding of authors’ moral rights in some EU countries, a by-line is protected, but CRC only goes as far as recommending that news sources should be acknowledged where it’s not inconvenient to do so.

Broadcasts

CRC spends a while on the meaning of the word broadcast, and on whether the legal meaning should be changed. A broadcast is (re)defined as an electronic transmission, a neutral definition not specifying which electronics are involved. I’m not sure if this excludes podcasts. I hope not. That would be a shame.

Marshalling

Marshalling is a (hopefullly neutral) term to cover activities as diverse as curation, aggregation and quotation.

Outlets can quote 2.5% of a work, provided it’s no more than an upper boundary of 40 words. And there’s also a 160 character limit. But what really interests me is that elsewhere, the report calls for a 140 character limit – the length of a tweet.

That’s an interesting number, which seems to have been missed in the editing and proofing stages.

News websites will be largely indifferent to this. It sort of provides a definition of plagiarism, but really, it’s not going to matter to an aggregator.

News facts are defined elsewhere as essentially public domain, and rewriting is part of the news process.

And even if there wasn’t a legal incentive to paraphrase a news report, the kludgy nature of print headlines and leads mean it will probably be reformatted anyway, if only to work better as clickbait. This article is Ten Things You Need To Know About Irish Copyright Reform, for instance.

So who benefits from this precise numeric definition of snippets which can be quoted? Google News is the only service I can think of. Those numbers are just the kind of thing their algorithms can crunch.

Parody

An exception to copyright is proposed for works of caricature, parody, pastische, and satire.

There’s also an exception for work which is “non-commercial user-generated content”.

So what happens when a user photoshops the head of a politician onto an image in a comical fashion for use on their private blog, and that image goes viral and is picked up by a newspaper or commercial news website? Who benefits?

Fair Use

One simple proposed change is enough to cause nightmares for rightsowners: “Fair dealing means” is changed to “fair dealing includes”. Hello Fair Use.

Only there’s more to Fair Use than that small change.

A colleague of mine once worried that CRC would “introduce Fair Use by the back door”. He was wrong. CRC brings Fair Use up to the front door, invites it inside, sits it down in a comfy chair, and asks if it would like a nice cup of tea and a slice of cake.

In the nightmares of rightholders, any use can, under proposed legislation, be defended as Fair Use if not already covered by any of the existing exceptions to copyright. Of course, it’s not as simple as putting up a sticker saying ‘Fair Use’. There are courts to consider, and the minister gets the power to define examples and uses. But throughout the process, Fair Use exists.

Government ministers are of course above reproach, and their decisions are widely regarded as on a par with Solomon’s.

Or to put it another way: Here Be Dragons.

Fair Use terrifies rightsowners, because you cannot be a little bit pregnant. Even if CRC insists that their variant of Fair Use is limited and cautious, rightsowners worry about its potential to destroy their asset base. From a position where specified uses are allowed under Fair Dealing, they move to a new landscape where possibly unlimited and as yet undefined uses are potentially Fair Use.

Forget the Dragons. Here Be Lawyers.

CRC notes that submissions on Fair Dealing/Use were anecdote heavy, but light on data. In the absence of evidence then, CRC decided there were no objections to introducing a Fair Use doctrine. Given their terms of reference, with their emphasis on “innovation”, this is no surprise, though an equally valid decision might have been to stick with the status quo in the absence of evidence that a chance would be an improvement.

 

Image via MorgueFile.com
Image via MorgueFile.com

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