NET RESULTS:Less confusing and constrictive legislation would encourage homegrown start-ups and foreign investment

MOST PEOPLE with an interest in Irish copyright law agree on one thing: it needs to be changed.

The current Government has listened to this concern, with Minister for Enterprise, Jobs and Innovation Richard Bruton announcing early on in his tenure that he would instigate a review of copyright law, currently under way.

One of the most potent reasons (and the reason why a minister with responsibility for innovation and employment is involved) is that thoughtful copyright law makes for better business.

And, a less confusing and constrictive law in this country would encourage innovation and homegrown start-up companies, as well as lure foreign direct investment.

Under current legislation, companies from small start-ups up to Google have argued that various elements, including the lack of a clear US-like “fair use” section within the law, make doing certain kinds of business very difficult. In particular, various types of internet and data centre-based companies are unlikely to take the risk of doing any kind of high-level work in Ireland because of risks they say are inherent in the law.

On the other hand, some industries, such as the music sector, have argued that any alteration would weaken protections on copyright material such as songs, and could indicate tacit support (or, tacit indifference) to their industry nightmares, such as free online sharing of music.

An informative range of perspectives was offered recently at a half-day seminar sponsored by the Law Society of Ireland, with some financial support from Google.

I don’t know if anybody left the seminar with a clear idea of what needed to be done next, but it offered a lively sense of the concerns, hopes, and priorities of the people who care about this issue.

One of the most interesting presentations for me was that of Prof Peter Jaszi, a specialist in the area of domestic and international copyright law who teaches in the College of Law at the American University, Washington.

He argued passionately for introducing a fair-use doctrine here, which he said in the US has “been a real engine not only for cultural but also economic development”.

He went so far as to argue that it has been a kind of “secret weapon” in accelerating the growth of innovation industries and the economy in the United States.

In particular, he noted that industries such as film, publishing and software wouldn’t be the size they are, or have the strength they have, if they had not been able “to take full advantage – and believe me, they did – of fair use”, especially as youthful companies.

More mature industries and companies, on the other hand, tend not to like fair-use doctrine, because it enables innovative young companies to nip competitively at their heels.

But he said the US courts had consistently recognised the ways in which fair use encourages creativity and industry and have, therefore, been largely positive towards the doctrine in litigation.

Fair use has constraints. In the US, the usage of copyright material must be “transformative”, it must be a “repurposing” of the material, and it must add significant value for a new audience.

In other words, as he noted, “Fair use is not a blank cheque. Fair use is not a licence to steal. It is, however, to some degree a licence to create.”

Fair use doctrine has been particularly important to the software, hardware and electronics industries. It has protected the rights of companies to “reverse engineer” software – to pick apart a programme or piece of equipment to understand how it works, and then build a product or application that uses some or all of that functionality, engineered in a different way.

Without this ability, the modern technology industry would be dominated by monopoly companies who own the rights to every aspect of their output, eliminating competition and the development of related products or features, and leaving the consumer paying a premium price for every new product.

“Small creators” (shorthand for artists, photographers, writers, musicians, etc) at the event voiced some apprehension that a fair-use doctrine would allow exploitation of their work. But speakers such as Prof Martin Senftleben, a copyright expert at the faculty of law at Vrije Universiteit Amsterdam, tried to assuage such fears.

“Small creators can benefit. For example, many now won’t use materials because they’re afraid of impinging copyright.”

He noted that all these issues are being thought about at the European legislative level, where he said “a European fair-use system could be even more flexible than the US one” and could also discuss the issue of “fair compensation” for those whose works are sampled.

TJ McIntyre, lecturer in law at University College Dublin and one of the organisers of the seminar, noted that Ireland could even introduce a small intellectual property claims court for such small creators.

Solicitor and co-founder of the Copyright Association of Ireland, Linda Scales, bemoaned “the absence to date of any real debate around copyright” in her argument that there is a need for a new primary law, not piecemeal additions to existing Irish law.

Fortunately, seminars such as this, focused on innovation, information, and the internet, will start airing issues more publicly, alongside the work of, and submissions to, the Government’s Copyright Review Group.

Anyone attending this forum walked away understanding at least that changes to copyright law have the potential to transform the Irish technology business landscape in fresh ways, and those with an interest in that sector need to pay attention.