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GAZETTE
MARCH1993
Copyright - New Licensing Agency
and Other Developments
by Anthony P. Quinn*
Do existing laws and procedures
adequately protect copyright owners
in this technological era? Mass use
of copiers in offices and libraries
facilitates the abuse of reprographic
rights, i.e. facsimile reproduction in
paper form. This article outlines how
the new
Irish Copyright Licensing
Agency,
a joint initiative by authors
and publishers, has devised collective
licensing and royalty collection
procedures to protect the interests of
authors/publishers and facilitate
educational institutions and other
users of copyright printed material.
1
Background
"To every cow her calf and to every
book its copy."
"Le gach bó a buinin, agus le gach
leabhar a chóip."
So held Diarmaid MacCearrbheoil,
High King, finding in favour of the
plaintiff in the historic case of
St.
Finnian of Maigh Bhile
-v-
St.
Columcille,
560 AD. The plaintiff
demanded return of a Gospel book
and its copy secretly made by the
defendant without consent. In his
judgment, Diarmuid rejected the
plaintiff's arguments that the copy
was his property. Copyright was an
exception to the general principle of
the Brehon laws that property such
as land belonged to the clan.
2
Thus,
even in ancient times, a right to the
fruits of literary efforts was
recognised.
The principle in
Finnian
-v-
Columcille
was enshrined widely in
jurisprudence (not necessarily on the
basis of that Celtic precedent) to
protect intellectual property rights by
copyright. The law tries to achieve a
balance between two public interests:
reward for the personal ingenuity of
owners of rights and organised
society's demands for access to
printed information. In
Sayre
-v-
Moore,
a case of 1785 re the copying
of maps, Lord Mansfield referred to
the need to reconcile the rights of
creators and users.
3
"The law tries to achieve a balance
between two public interests:
reward for the personal ingenuity
of owners of rights and organised
society's demands for access to
printed information."
Anthony P Quinn
Copyright and Creativity
The relationship between copyright
and creativity was explored by US
Judge Richard A. Posner.
4
There is
an analogy with primitive agriculture
in a society without property, rights
where anyone could reap the benefit
of others' efforts. Work shifted to
more rewarding activities. The
position of authors' creativity is
more complex. As Judge Posner
explains, authors write for reasons
other than money. Inner satisfaction,
hope of immortality, prestige or
fame may be the spur. Copyright law
was not so necessary in the past
when printing was licensed. It was
so time-consuming and expensive to
copy a book that it would be more
economical to buy an original copy
and directly reward the author.
Legislation
The first English Copyright Act was
passed in Queen Anne's reign, 1709
(8 Anne c.19). That legislation was
narrower than modern Acts and it
did not protect translations from
foreign languages. Protection was
mainly for booksellers who then
were also publishers. Much classical
literature from the nodder Homer to
the plagiarist Shakespeare was
created prior to copyright Acts.
The Irish Copyright Act, 1963 (the
1963 Act), provides in s.7 (1) that
copyright in a work is the exclusive
right to do, and to authorise other
persons to do, certain acts in relation
to that work which in the relevant
provisions are designated acts
restricted by the copyright in a work
of that description.
5
Restricted acts include not only the
obvious e.g. publication and public
performance or broadcast as
appropriate, but also reproducing the
work in any material form. To put
readers on notice, most modern
publications refer to rights reserved
and also prohibit photocopying and
recording without copyright holders'
permission. Ss.12 and 14 for fair
dealing exceptions e.g. research,
private study, criticism or review,
lack the detailed provisions of s. 29,
UK 1988 Act. In Ireland, students
may copy within limits (10% of a
work) for strictly personal research
or study but multiple copying
without permission is illegal.
Widespread copying by individuals
on the instructions of educational
institutions is arguably stretching fair
dealing to the point of illegality.
Infringement and Remedies
S. 7 (3), 1963 Act provides that