The recently published coalition agreement between Fine Gael and the Labour Party proposes to introduce the US ‘fair use’ test into Irish Law. The introduction of the ‘fair use’ test has long been advocated as the method by which the law of copyright should evolve to address the increasing use and influence of the internet.
Currently, Irish copyright law operates for the benefit the content creators (i.e. authors, musicians etc). Intermediaries (i.e. YouTube, Eircom, UPC, Boards.ie, etc) and content users must rely on a number of limited exceptions (such as fair dealing and educational usage) when using copyrighted material (other than under licence) so as not to infringe the creator’s rights. Opponents of the current regime argue that the era of information in a fixed form is coming to an end and that the increased use of the internet means the current system is no longer suitable to strike the appropriate balance between rewarding creativity on one side and allowing the flow of information, which is crucial to the way the internet operates, on the other side.
Generally, the ‘fair use’ test allows for the copying of copyrighted material for a limited and “transformative” purpose such as for commentary upon, criticism or parody. The permission of the copyright owner is not needed for such use. Courts in the US look at four factors which are used to determine whether the use in questioned can be considered to be ‘fair use’. The four factors generally looked at are:
- the purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion used, and
- the effect of the use upon the potential market of the original work.
Our recent article concerning the Meltwater News case in the UK illustrates the difficulties faced by businesses on this side of the Atlantic. It is certainly possible that the decision may have been decided differently if the ‘fair use’ defence was available. It remains to be seen whether the new Government’s proposed defence will mirror the one currently in force in the US. It is beyond doubt however that the defence, if introduced, will change the manner in which copyright law operates in this country.
Contributed by Leo Moore.
