As we outlined previously here, Ireland has become the seventh EU Member State to implement the Directive on Copyright in the Digital Single Market ((EU) 2019/790) (CDSM Directive) on 19 November 2021. It did so under the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 (Irish Regulations). Implementation of the CDSM Directive in Ireland marks a significant evolution in Irish copyright law, amending the Copyright and Related Rights Act 2000 to reflect international developments.

While the Irish Regulations broadly implement the CDSM Directive, they provide further clarity and guidance. This Briefing examines differences in transposition between the CDSM Directive and the Irish Regulations, how this elucidates the key issues of the CDSM Directive and potential gaps which remain.

An Update to Ireland's Copyright Exemptions for Text and Data Mining

The CDSM Directive requires Member States to introduce an exception to copyright infringement to allow research organisations and cultural heritage institutions to engage in text and data mining of lawfully accessed copyright-protected material for scientific research.

Ireland had already introduced text and data mining exemptions in 2019, following the publication of the Modernising Copyright, a report by Ireland's Copyright Review Committee. Modernising Copyright recognised the potential for new discoveries from existing data and for significant social benefits to be gained from content mining. It therefore recommended exemptions in favour of content mining for non-commercial research. Ireland's existing exemptions allow any person to engage in computational analysis of lawfully accessible copyright-protected material for noncommercial research purposes without infringing copyright. The existing exemptions require sufficient acknowledgement by the text/data miner. Copyright infringement still arises where a copy of the copyright-protected work made for text/data mining purposes is transferred to another person without the copyright owner's consent or where the copy is used for a commercial purpose.

The CDSM Directive requires that text/data miners store copies made under the Article 3 test and data mining exemption with "an appropriate level of security". It also provides that rightsholders should be allowed to take necessary measures to ensure the security and integrity of networks and databases where they store their own copyright works. The CDSM Directive requires Member States to encourage rightsholders, research organisations and cultural heritage institutions to define commonly agreed best practices concerning these security measures. The Irish Regulations take a distinctive approach to applying these requirements to the existing Irish text and data mining exemptions. Notably, the Irish Regulations

1. anticipate commonly agreed industry standards by including more elaborate provisions on appropriate levels of security; and

2. appear to take features of the CDSM Directive that allow rightsholders to protect their own networks and databases from being overwhelmed by automated access requests from text/ data miners and translate those features into more detailed obligations on text/data miners to protect copies of copyright-protected works after they have been made.

Under the Irish Regulations, the person responsible for the security and integrity of the network and database where a copy of a copyright-protected work is held, must ensure only those with lawful access are permitted to access it. The Irish Regulations suggest that the responsible person may achieve this through IP address validation or user authentication.

The rightsholder must be informed of the making of a copy and may request information on the steps taken by the responsible person to ensure appropriate security measures. The rightsholder may also request additional security measures, although they are only entitled to know as soon as practicable whether these additional measures have been applied.

The CDSM Directive and the Irish Regulations also go further than the existing Irish exemption, creating an additional exemption allowing any person to engage in text and data mining of lawfully accessible copyright-protected material unless the rightsholder has reserved the use of a work in an appropriate manner. This new exemption is not limited to text and data mining for scientific or non-commercial purposes. The Irish Regulations provide that the rightsholder may reserve the use of the work using machine-readable methods (such as meta-data or terms and conditions of use/service) or, where the content is not publicly available online, by clearly communicating the reservation to all persons who have lawful access.

Negotiation Mechanism for Audio-Visual Works on Video-on-Demand Platforms

The CDSM Directive requires Member States to ensure that an impartial negotiation mechanism is available to parties facing difficulties licensing audio-visual works on video-on-demand platforms. The CDSM Directive allows for an impartial body to be established and designated or for the use of mediators. From those options, the Irish Regulations opt to provide that parties may engage in mediation consistent with the Mediation Act 2017.

To view full article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.