I am delighted to give a short presentation on the Green Paper. The Green Paper was published by the European Commission last July. In the information note we prepared for the Commission we summarised it in the following terms — that it was to foster a debate on how knowledge for research, science and education can best be disseminated in an on-line environment having regard to the inherent copyright and related rights of the source works involved. It was designed to launch a consultation, particularly on several of the exceptions and limitations of copyright law, for example, for people with a disability, teaching and research purposes, libraries and archives, orphan works, digitisation and making digitised work available and user-created content. We pointed out that the Green Paper was intended to be a starting point for a structured debate on the long-term future of copyright policy in those areas. I propose to elaborate on that general summary, first, dealing with the purpose of the Green Paper and, second, its structure.
As I have already said, the purpose is fairly clear. The Green Paper is in two parts. The first part deals with general issues relating to exceptions to exclusive rights that were introduced in the main European legislation in this area, which is EU Directive 29 of 2001. That was the directive which harmonised aspects of copyright and related rights in European terms. The other item of copyright legislation referred to is EU Directive 9 of 1996, which dealt with the legal protection of databases. That is really where the Green Paper is coming from.
The second part of the Green Paper deals with those specific issues we have mentioned, relating particularly to exceptions and limitations — the ones which are most relevant for the dissemination of knowledge because it is being done against the background of the knowledge economy — and particularly whether those exceptions, which were drawn up in 2001, should evolve or be changed in the new era of digital dissemination.
The Green Paper set out to address all the issues in a balanced manner, taking into account the perspective of publishers, libraries, educational establishments, museums, archives, researchers, people with a disability and the public at large. Those are the perspectives that it wanted to take into account.
To focus for a minute on the public, when the Green Paper refers to "the public" it is obviously bearing the general public in mind, but it is primarily aimed at scientists, researchers, students and disabled people, or the general public who want to advance their knowledge and education levels by using the Internet.
It starts from a position that wider dissemination of knowledge always contributes to more inclusive and cohesive societies and fosters equality of opportunity, which is in line with the priorities for the forthcoming social agenda. A high level of copyright protection is crucial for intellectual creation. Copyright ensures the maintenance and development of creativity in the interests of authors, producers, consumers and the public at large. A rigorous and effective system for the protection of copyright and related rights is necessary in order to provide authors and producers with a reward for their creative efforts and to encourage producers and publishers to invest in creative works. This is really the basis of copyright protection.
In addition, the publishing sector makes an important contribution to the European economy. Copyright is also a policy in line with the imperative to foster progress and innovation. The Green Paper seeks the views of researchers on new ways of delivering digital content in particular. These new models of delivery should allow consumers and researchers to access protected content in respect of copyright.
The first part of the Green Paper, the general issues aspect of it, refers to the 2001 directive, which harmonised various rights in this area. These are basically the rights of reproduction, communication to the public, making available to the public and the distribution right. The basic principle underlining harmonisation in the 2001 directive was to provide right holders with a high level of protection, so the scope of exclusive rights was broadly defined.
Since that 2001 directive — which, in large measure, was anticipated in Ireland in our primary copyright legislation, the Copyright and Related Rights Act 2000 — some stakeholders in the area of copyright have questioned whether the introduction of exclusive rights translates into a fair share of income for all categories of rights holder. Authors, such as composers, film directors and journalists, have sometimes argued that they have not earned significant revenue from the exercise of the new "making available" right concerning on-line exploitation. That is a new factor which has become more prominent since 2001.
On that general front, the Green Paper points out that the conditions of the application of the exceptions were drafted at that time in fairly general language and states that, arguably, the approach chosen has left member states a great deal of flexibility in implementing the exceptions, which is true. Then it goes on to deal with the exception on transient copying, which is incidental copying which is done, for example, as part of what one does when one logs on to a computer these days. That one, which was mandatory, had to be transposed by member states. The others were all optional, but most of them were implemented in the 2000 Act.
Having set the general picture, the Green Paper poses a number of general questions under that heading and then moves on to deal with the more specific issues, which are in the second part of the Green Paper.
To take them in the sequence in which they are outlined, the first is the exception for libraries and archives. It points out that, under that heading, two core issues have arisen: the production of digital copies of materials held in the libraries' collections and the electronic delivery of these copies to users. Also the digitisation of books, audiovisual material and other content can serve a two-fold purpose, namely preservation of content for future generations and making it available for end users on-line.
Under the current legal framework, libraries or archives do not enjoy a blanket exception from this right of reproduction. Reproductions are only allowed in specific cases, which arguably would cover acts necessary for the preservation of works contained in libraries' catalogues. The Green Paper suggests that the exception and national rules implementing it are not always clear on issues such as "format-shifting" or the number of copies that can be made under this exception. The detailed regulations in this respect are spelled out in the legislation in the individual member states.
In recent years libraries and other public-interest establishments have become increasingly interested not only in preserving, that is, digitising works but also in making their collections accessible on-line. The libraries argue that if that takes place to any large extent, researchers would no longer have to go to the premises of libraries or archives but would easily be able to find the required information on the Internet. Also, some of the publishers state they are starting to digitise their own catalogues with a view to setting up interactive on-line databases where the material can be easily retrieved. Those services would require payment of a subscription fee because they are commercial operations. Again, under the heading of libraries and archives, the Green Paper poses a number of questions to interested parties.
The second exception it deals with is that for the benefit of people with a disability. It points out that people with a disability should have an opportunity to benefit from the knowledge economy as well. To do this they not only need physical access to the premises of educational establishments or libraries but also the possibility of accessing works in formats that are adapted to their needs such as braille, large print, audio-books etc.
The 2001 directive contains an exception to this reproduction right and the communication to the public right for the benefit of people with a disability. All member states have implemented this exception. However, the Green Paper points out that in some national laws it is restricted to certain categories of disabled persons, for example, in some cases it only covers the visually impaired. That is not the case in Ireland. We included a general exception in the 2000 Act. Some other member states require payment of compensation to the right-holders for the use of works. We do not have that in our legislation.
A common concern for disabled people is the cost, in terms of time and money, involved in making accessible copies of books which are only available in paper format or in a digital format which is obviously not easily convertible to braille. Right-holders believe appropriate protection against piracy and misuse needs to be guaranteed. This is particularly relevant in the context of the delivery of digital formats, which can be easily reproduced and instantly disseminated over the Internet. An issue of balance arises and rights holders do not want exceptions such as those to which I refer to be abused.
The third area of exception relates to the dissemination of works for teaching and research purposes. The Green Paper points out that teachers and students increasingly rely on digital technology to access or disseminate teaching materials. The use of network-based learning accounts for a significant part of regular curricular activities at present. While dissemination of study materials through on-line networks can have a beneficial effect on the quality of European education and research, it may also carry a risk of copyright infringement where the digitisation or making available of copies of research and study materials are covered by copyright.
The Green Paper also points out that the public interest exception for teaching and research purposes was designed to reconcile the legitimate interests of rights holders with the wider goal of access to knowledge. The copyright directive allows member states to provide for exceptions or limitations to the rights of reproduction and communication to the public when a work is used, "for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible". This exception has often been implemented in a narrow sense by some member states and, for example, Internet-based learning at home is not covered. In addition, the exception often only covers copying excerpts of the research material rather than the entire work. Some member states — not Ireland — have opted for a teaching exception, while having no exception for research. There are a number of variations regarding the way in which effect has been given to these exceptions by member states.
The fourth area of exception, which is new and which was not dealt with in 2001, is that relating to user-generated content. This is a recent phenomenon because consumers can be not merely users, but also creators of content. Convergence is leading to the development of new applications building on the capacity of ICT to involve users in content creation and distribution. Web applications such as blogs, podcasts, wiki, video sharing, etc., allow users to create and share text, videos or pictures and to play a more active and collaborative role in content creation and knowledge dissemination.
The Green Paper highlights the fact that there is a significant difference between user-generated content and existing content that is simply uploaded by users and is typically protected by copyright. We are referring here to something in respect of which an additional process has been carried out or to which an extra input has been made. The best definition of this came in the form of a recent OECD study which defined user-generated content as "content made publicly available over the Internet, which reflects a certain amount of creative effort, and which is created outside of professional routines and practices".
As already stated, the 2001 directive does not contain an exception in respect of this matter. The obligation to clear rights before any transformative content can be made available could possibly be perceived as a barrier to innovation in that it is possible to argue that it blocks new, potentially valuable works from being disseminated. However, before any exception for transformative works can be introduced, it would be necessary to carefully determine the conditions under which a transformative use would be allowed in order not to conflict with the economic interests of the rights holders of the original work. This is quite a tricky area.
The areas I have outlined are those the Green Paper addresses. The Green Paper ends with a general call for comments and states that the combined operation of broad exclusive rights with specific and limited exceptions highlights the question of whether the exhaustive list of exceptions under the directive achieves "a fair balance of rights and interests between [...] the different categories of rightholders and users". They say they want a forward-looking analysis of whether this balance is still in line with the rapidly changing environment. Technologies and social and cultural practices constantly challenge the balance achieved in the law while new market players such as search engines seek to apply these changes to new business models. These developments have the potential to shift value between the different entities active in the on-line environment and affect the balance between those who own rights in digital content and those who provide technologies to navigate the Internet. The deadline specified for submissions is 30 November and it is pointed out that the questions posed in the Green Paper are indicative. It is open to anyone make a submission to address those issues or different issues. It is an open consultation.
Following the publication of the Green Paper, the Department took two actions. Although it was drafted by the Commission, it is of interest to many players in the copyright field in Ireland. We put the text of the Green Paper up on the Department's website under the intellectual property section, drawing attention to the deadlines and so on. We also wrote to all the players in this area we thought might have an interest, drawing their attention to the Green Paper and requesting that copies of submissions to the Commission might be copied to us so that we can get a feel for people's views on this.
We wrote to our own development agencies — Forfás, Enterprise Ireland, IDA Ireland; our colleagues in the Departments of Education and Science, Arts, Sport, and Tourism and Communications, Marine and Natural Resources; the Library Council; the Library Association of Ireland; the Irish Book Publishers Association; the National Library; the Periodical Publishers Association of Ireland; the National Union of Journalists; the Irish Copyright Licensing Agency; various bodies involved in the disability sector, including the National Disability Authority and the National Council for the Blind; the National Museum, Kildare Street; the Irish Museums Association; the National Archives; the various representative bodies and collecting agencies involved in the copyright scene such as the Irish Recorded Music Association, Phonographic Performance Ireland, Recorded Artists and Performers Limited and the Irish Music Rights Organisation; IBEC; the National Consumer Agency; the teaching unions, including the TUI, ASTI, INTO and the Irish Science Teachers Association; the Union of Students in Ireland; and private sector companies with most interest in this area such as Google and Yahoo.
