The complete overhaul of Irish copyright legislation is something that concerns every sector of Irish business. While the law may be technical and complex, the consequences of copyright regulation are extremely far-reaching.
The products and images that "brand" the Republic as a successful economy, with a rich and distinct cultural history, past and present, are underpinned by copyright law. Without a strong and up-to-date Irish law, the threats to inward investment and the possibility of trade sanctions through the World Trade Organisation are real dangers.
So who are the big winners under the Copyright and Related Rights Act 2000?
New media producers are major beneficiaries. The new legislation gives protection for all original collections, in whatever form, against the pirating of the collection. This is achieved by tweaking copyright law to allow data and other materials to be recognised as worthy of inclusion in a collection as well as traditional works such as literary text, drawings or photographs.
Multimedia producers also have the right to prevent others from extracting and/or using the substantial content of a database. Indeed, even insubstantial extraction or use without permission may infringe. While the right lasts for 15 years, substantial updating or reinvestment may "refresh" the right indefinitely.
The new act also recognises computer-generated works such as computer programmes, diagnostic equipment images and satellite photographs.
Performers are also assisted by the legislation. The old law was unclear on the basic question whether a singer or actor could bring a civil action against someone who filmed or recorded a live performance, for example, without permission. The new legislation provides rights of this kind, considerably enhancing the bargaining position of performers.
New rights to share fees that record companies command when licensing broadcasters to use recordings are also important.
Performers also benefit in other ways. So-called moral rights, in particular the right to be acknowledged as a performer, as well as the right not to have the performance subjected to derogatory action that harms the reputation of the performer, are new rights.
The record industry managed to benefit in one important area - the battle against bootlegging. The new act now empowers a record company to proceed against a bootlegger if the company has an "exclusive recording contract" with the artist.
Faced with opposition from vintners and other users of recorded music, the Government rolled back on proposals to give record companies exclusive rights.
Other significant beneficiaries include the book publishing and newspaper industries. Infringement of copyright by photocopying on a systematic or institutional basis was probably an infringement under the old law, but the new legislation makes it absolutely clear that copying without a licence from a representative body is not permitted, save in very limited circumstances.
Newspaper proprietors now enjoy the copyright of journalists' work, but a balance is struck by allowing the journalist to use the work for most other purposes. Nevertheless, some disputes between journalists and proprietors may still be anticipated.
Issues of ownership of electronic formats, and the applicability of contractual arrangements between journalists and owners to electronic formats, have produced significant litigation in the US and Belgium, and several commentators have suggested that the ownership issues are not clearly resolved by the new Irish Act.
Who are the losers? The new legislation is intended to sharpen and enhance the rights of authors and entrepreneurs, who produce copyright works. The inevitable result of this process is that a lot of the free riding that has been tolerated now has to come to an end.
People and organisations that pirate CDs and computer software now face more stringent laws, although criticism of enforcement methods by trade bodies such as the Business Software Alliance can now be heard. Criticisms that copyright law can erode other freedoms are also mounted from time to time but, in general, these criticisms are misplaced. The new legislation retains a significant number of copyright exceptions that allow copying of reasonable extracts of works for research or private study, for criticism or review, and so on.
Even when the law seems overprotective, as in the case of Governmental copyrights and the playing of a musical work at school concerts, there are some agreements in place that legally constrain the use of these statutory rights in an unreasonable manner.
The final point to make is that where rightholders or representative bodies seek to license the use of works, the new Act provides significant legal powers to the Controller of Patents, Designs and Trade Marks to examine and provide legal redress for unreasonable licensing schemes and practices. It must, however, be stressed that several legal commentators have doubts about whether these provisions on dispute resolution can be made to work.
Robert Clark is associate professor of law in UCD and a consultant to Arthur Cox Solicitors. His latest work, Irish Copyright and Design Law, was published by Butterworths last month.
