Here are some first thoughts on how the just-published coalition agreement (Fine Gael and Labour) in Ireland proposes to deal with issues of interest to cyberlaw and media law. I’ve picked out some key issues – no promises that I have covered everything. First copyright (and other IP), then broadcasting, then IT (broadband and cloud computing), then video games, and finally the Constitution. Your thoughts welcome. (Noting of course that this is not a government until the Dáil meets to nominate one!)
We will pioneer within the EU a model of ‘fair use’ in European Copyright Law, like in the USA, which effectively permits the use of portions of a copyrighted work so long as the normal economic exploitation of the originating work is not undermined. This will allow internet companies and other digital innovators to bring their services to market.
Ireland’s current legislation on copyright provides for specific fair dealing exceptions, such as regarding “fair dealing…for the purposes of research or private study”. This can be contrasted with the US ‘fair use’ test in section 107, setting out four factors to be considered: what in shorthand I still refer to as purpose, nature, amount and effect, although the tests themselves are more eloquent.
This proposal is similar to (but appears more committed to) the discussion in the November announcement of the Hargreaves Review by David Cameron in the UK. In Cameron’s case, specific reference was made to the suggestion that Google could not have set up in the UK due to the law on fair dealing – a claim that has been deconstructed by many since. The commitment here though also recognises that the current law in the EU is based on an extensive fair dealing approach (i.e. statutory exceptions, with Member States getting to pick and choose – parody, for example, is permissible as an exception under the directive but not found in UK/Irish law), and therefore a change away from exceptions towards US-style factors. If the UK does end up deciding in favour of fair use, then that’s two states lobbying for it. However, there are also some downsides (even from the point of view of facilitating innovate uses) of the US system – it’s still a bet whether the ‘unpredictable’ factors can end up broader than the ‘predictable’ exclusive exceptions.
We will develop a National Intellectual Property (IP) protocol to give predictability about the terms on which business can access IP created in Higher Education Institutions and the wider digital sector.
This is the old Bayh-Dole problem – who owns university-related IP and how does commercialisation happen? and has also been debated regarding ‘fourth-level Ireland’. A protocol might make sense although its existence doesn’t point one way or the other at this stage.
We will support the development of an International Content Services Centre to make Ireland world leader in managing intellectual property.
This one has been on the go for some time in Ireland – in the report on Technology Actions to Support the Smart Economy (available as .doc) (Damien Mulley’s reaction to the press conference remains worth quoting), as an International Innovation Services Centre in the 2010 report of the Innovation Taskforce, and not forgetting Neil Leyden’s successful Your Country Your Call bid.
We will review and update Intellectual Property legislation currently in place to benefit innovation, develop a National Intellectual Property protocol to give clarity about terms on which business can access IP created in Higher Education Institutions, and clarify legislation relating to online copyright infringement and enforcement of rights relating to digital communications.
As well as repeating the university and fair use points above, the last point refers to the current debate on ‘three strikes’, particularly the alleged lacuna identified by the High Court in EMI v UPC last November. As in the UK, how a Government can both extend and restrict the growth of copyright in a digital context will be fascinating to watch. If the intention is to facilitate emerging creative platforms and business models (through fair use), new powers to protect IP online may create new risks and threats. On the other hand, those who might welcome new legislation on online infringement could be concerned about how fair use would affect exploitation of rights, as we see whenever Google Books is debated.
We will examine the role, and collection of, the TV license fee in light of existing and projected convergence of broadcasting technologies, transform the TV licence into a household-based Public Broadcasting Charge applied to all households and applicable businesses, regardless of the device they use to access content and review new ways of TV licence collection, including the possibility of paying in instalments through another utility bill (electricity or telecom), collection by local authorities, Revenue or new contract with An Post. We will review the funding of public and independent broadcasters to ensure a healthy broadcasting environment in Ireland. We will maintain the current regime with regard to the Heineken Cup.
This is really it in terms of conventional media issues and that itself suggests a mixture of innovative (a public broadcasting charge, not associated with the ‘television set’ as TV licensing and radio licensing before it has been) and stand-still (nothing of any detail on public broadcasting, for example). Nothing on EU-wide issues in this case (as compared with copyright), except for the amusing reference to the Heineken Cup (the previous Minister had proposed listing these rugby events under the Major Events Directive but this (to my knowledge) has not been confirmed, so I read the reference here as meaning that this event will not be designated.
We will mandate the regulator to require all broadband providers to publish average speeds for each package.
We will restrict misleading advertisements relating to monthly caps.
We will introduce a new government rating system so that home owners and tenants can assess broadband facilities easily.
This is what we have on broadband. All sensible if not particularly dramatic.
We will make Ireland a leader in the emerging I.T. market of cloud computing by promoting greater use of cloud computing in the public sector, organising existing State supports for cloud computing into a package to promote Ireland as a progressive place for I.T. investment, establishing an expert group to address new security and privacy issues arising from the use of cloud computing and reviewing the adequacy of current legislation and identify what steps need to be taken to ensure a supportive regulatory environment.
Indeed, more on the cloud than on broadband suggests an interesting shift in the debate. The second half of this is more enduring than the first – a full review of the law on cloud issues, if properly mandated, could be an important piece of work for Ireland and for other states.
We will support our indigenous digital game industry by reforming R&D supports available to the industry, setting aside funding from Innovation Fund Ireland for a seed capital scheme for Irish digital gaming start-ups, introduce a digital media component to Transition Year programmes and promote Ireland as digital gaming hub.
Not particularly specific, but will this include tax breaks? Again, given the debate on this in the UK, we can see some positioning going here. For non-Irish readers: Transition Year comes between Junior Certificate (age 15) and Leaving Certificate (age 18, pre-university) study and often has more of a skills or employability focus than the general curriculum. Finally – I do not know exactly what the ‘digital gaming hub’ might be, but it sounds interesting…
Finally, a Constitutional Convention will consider various issues, including the removal of the constitutional reference to blasphemy (good) – and other unspecified issues, which might (or at least, I hope) include long-stalled reform of the law on freedom of expression.