The Gazette 1993

GAZETTE

APRIL

1993

who, not being the owner of the

owner, does or authorises another

person to do any restricted acts.

Infringement of copyright is

actionable at the suit of the

1963 Act, provides for remedies.

Different remedies may be

appropriate: injunction, an order for

account, damages, action for

conversion; criminal sanction under

the Copyright (Amendment) Act

1987; an

Anton Pilar

order for

search and seizure of documents.

Controlling Copying under

Copyright Law

Existing copyright law may seem too

restrictive or too expansive

depending on the interests involved.

Even allowing for fair dealing

exceptions, existing law is being

widely abused by offices, educational

users and libraries. Warnings at the

start of books clearly assert legal

rights and try to prohibit

unauthorised photocopying. (Even

without such warnings, rights exist.)

Unauthorised copying is illegal and

enforcement actions are a threat to

individuals and bodies flouting the

law. In a recent landmark decision,

Texaco,

a New York Federal District

Court held that copying journal

materials for employees' use was not

fair use, and that permission and

compensation were required.

It may

be difficult to produce evidence of

infringement by copying.

"a New York Federal District

Court held that copying journal

materials for employees' use was

not fair use, and that permission

and compensation were required."

The Irish Copyright Licensing

Agency (ICLA)

As photocopiers are commonplace, it

is difficult for individual copyright

holders to prevent abuse of their

rights. Control by a special agency is

the effective solution matching

concepts of copyright as a multiple

bundle of rights which can be

assigned or licensed together or

separately. The ICLA is an non-

profit making company limited by

guarantee, recently incorporated,

with equal representation on its

board and in its membership by

authors and publishers. The articles

of association provide that the board

be chaired in alternate years by a

publisher and author nominee.

Publisher

Michael Gill

is chairman

and author

Eilis Dillon

is secretary.

The board fortunately obtained the

legal services of

Muireann O Briain

on a part-time basis. The ICLA will

operate through mandates from

writers and publishers. Authors'

unions support the initiative. ICLA

will exercise sensible control over

photocopying and provide users with

an easy means of obtaining

permission to copy.

ICLA will act

as a clearing centre for dealings

between owners and users of

schools, universities, tutorial centres,

commercial firms, State Departments

and agencies, public bodies,

professionals and individuals will be

able to comply with copyright law

through the ICLA.

New Licensing System

ICLA will licence the photocopying

of brief extracts from published

works. The limits are 5% of a book

or an entire poem/story not

exceeding ten pages. Libraries and

other heavy users will have to keep

records or agree to a survey system.

ICLA will collect appropriate fees

from users and income will be

passed on to publishers and authors.

Carte blanche unrestricted copying

will not be allowed. Limitations and

conditions of copying will be clearly

stated to all licensees. Publishers will

be relieved of unproductive work

such as individual correspondence.

International Dimension

The ICLA system mirrors collection

agencies abroad. A reciprocal

arrangement has been signed with

the UK agency. ICLA hopes to

negotiate with other members of the

International Federation of

Reproduction Rights Organisations

(IFRRO) so that payment for Irish

published works can be collected

abroad. The Australian Copyright

Agency Ltd., having negotiated

royalties from the Federal

Government for press cuttings

circulated in the civil service, is now

focusing attention on abuses in the

educational sector.

The Declaration of Human Rights,

article 27, 1947, asserts both sides of

the copyright coin: individuals'

cultural rights and authors' rights to

protect their moral and material

interests.

Many countries, including

Ireland, are members of the Berne

Universal Copyright Convention.

countries other than that of origin,

authors are given not only rights of

domestic laws of those countries but

also rights granted by the Union.

Works published in any country of

the Berne Union or Universal

protected in the Irish jurisdiction as

if the works were first published in

the State.

UCC formalities require

published copies of works, plus the

first publication.

EC Aspects and Law Reform

EC harmonisation initiatives in the

intellectual property field, aimed at

removing impediments to the free

movement within the Internal

Market, are a spur to reform of

national copyright law. Differences

between such laws impede progress.

The common law copyright concept

as known in Ireland and the UK,

contrasts with civil law continental

concepts, especially

droit d'auteur.

The latter, which evolved from the

Enlightenment and the French

Revolution, related to authors'

absolute control over creations of the

mind. Copyright law, based on

economic arguments, is more suited

than the abstract

droit d'auteur

protecting computer software.

There are also neighbouring rights

e.g. of performers and moral rights

to the creative integrity of literary

works. A proposed EC Council