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By Sarah McCarthy
A version of this article was published in the World Copyright Law
Report, 20 April 2004.
On 19th January 2004 Ireland put the finishing touches on its
transposition of EU Directive 2001/29/EC on the Harmonisation of
Certain Aspects of Copyright and Related Rights in the Information
Society (the "Directive") into Irish law by enacting the
European Communities (Copyright and Related Rights) Regulations
2004 (the "2004 Regulations"). However, three years previously
on 1 January 2001 Ireland had enacted the Copyright and Related
Rights Act, 2000 (the "2000 Act") which implemented substantially
the main terms of the then draft Directive.
Like the Directive, the 2000 Act dealt with the creation and distribution
of copyright works in different technologically advanced forms,
and is based on the principle of balance between the interests of
the right-holder (holder of author rights and other rights), on
the one hand, and on the other hand, the interests of those who
wish greater access to creative works (internet suppliers, consumers,
producers of equipment, libraries, publishers). When the final Directive
was adopted in 2001 the 2000 Act was almost fully compliant with
its provisions and the 2004 Regulations only contained only some
small technical amendments.
Ireland's implementation of the Directive in the 2000 Act contains
the following elements:
Reproduction Right
The Directive and the 2000 Act significantly updated the 'reproduction
right' of a copyright owner to copy a work or to authorise others
to do so. The right to copy a work now includes the copying of works
in electronic form and the storing of works in any medium.
Right of Communication
Another new right in the 2000 Act is the 'making available right'
of a copyright owner. This includes the making available in an on-demand
service, in compliance with the Directive and the WIPO Copyright
Treaty, but also significantly contains an explicit reference to
making available works over the Internet.
Temporary Acts of Reproduction
There is a mandatory fair dealing exception for temporary acts of
reproduction in the Directive. The 2000 Act included this exception
in substance but the 2004 Regulations amended it slightly to ensure
complete compliance. Its effect is that the making of a transient
or incidental copy of a work, which is technically required for
the viewing of or listening to the work by a member of the public
to whom a copy of the work is made lawfully available, does not
constitute an infringement of the work.
Other Exceptions to the Reproduction Right
The remainder of exceptions and limitations contained in the Directive
can be included at the discretion of the member states and the 2000
Act includes a list of acts permitted in relation to works protected
by copyright which are broadly similar to those contained in the
Directive. Examples include use by libraries and archives, for educational
or research purposes, and back-up or lawful copies of computer programs.
Rights-Management Information
The Directive introduced new offences regarding unlawful acts relating
to the removal of or interference with rights management information
for example the removal of identifying rights management features
such as "digital fingerprints" from copyright materials.
The 2000 Act included these offences but the section had to be amended
slightly in order to completely comply with the final Directive.
Protection of Technological Measures
This is another mandatory provision of the Directive and it was
implemented by the 2000 Act. Copyright rights-holders are provided
with rights and remedies against persons who unlawfully circumvent
technological measures designed to protect certain copyright materials.
The 2000 Act contains measures to protect encryption and other technological
protection devices and makes it an offence to make or sell devices
that are designed to circumvent rights protection technologies.
Conclusion
The 2000 Act consolidated and updated existing Irish copyright legislation
and previous European Union copyright legislation relating to protection
of computer programs, rental and lending rights, satellite broadcasting
and cable retransmission and database rights. The 2000 Act also
pre-dated the adoption of the Directive proving how committed Ireland
is to promoting the creation of intellectual works, which provides
immeasurable economic and cultural benefits in today's information
society.
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