The questions have been put together by representatives of consumers’ interests. National copyright experts from the 28 EU Member States provided answers under their respective jurisdiction. The European Observatory coordinates this work in the context of its Working Groups.
What is meant by the term ‘Fair Use’
Fair use is a legal concept that allows the reproduction of copyrighted material for certain purposes without obtaining permission and without paying a fee or royalty. Purposes permitting the application of fair use generally include review, news reporting, teaching, or scholarly research. Extending fair use in any way could affect the earning potential of copyright music.
What does copyright and related rights mean and cover, and is it the same all over the world?
Copyright and related rights address separate but overlapping subject matter and interests that are recognised and protected under Irish law. Writers and composers, for example, enjoy copyright in original compositions, while the actors and performers who give effect to those copyright works enjoy related rights in respect of their contributions. Both copyright and performance rights can be remunerative and psychological — recognition, for instance. While a worldwide consensus about the nature of copyright is underpinned by Treaty law, greater differences exist at national level in relation to related rights. EU law, however, has effected a large measure of uniformity. As a basic rule, any infringement of a copyright or related right should be pursued in the legal system of the country or state where the unlawful act (e.g. copying) took place.
Who owns copyright and how does copyright benefit creators, rights holders(s), consumers, society, economy and culture as a whole?
Irish copyright law in general recognises that the author of a copyright work is entitled to expect that copyright in a work will first vest in the author. Irish law allows that author in whom copyright vests to deal freely in that work by sale or licence of the copyright and to dispose of the copyright in a will. In a practical sense, a rights holder may allow free use to others by licences or declarations that he or she will not seek to assert copyright ownership. The Copyright and Related Rights Act, 2000 (CRRA 2000) contains a number of mechanisms to offset ownership rights with access and free use rights for educational establishments, researchers, students, etc.
Do I automatically get copyright protection, for example, if I take a photograph with my phone, or do I have to register my work to get protection?
Irish law does not contain any requirements in relation to the registration of title to copyright or entitlement to related rights. To the extent that no bureaucratic systems are in place (and no registration fees payable), Irish law assists creators, but there will still be a need to satisfy complex rules on originality and prove the time and place where the work was created.
What is copyright infringement? Can I get in trouble for copyright infringement? What if I wasn’t aware that I infringed something protected by copyright?
Copyright infringement occurs when the user of a pre-existing work copies it, allows others to access and use the work (by uploading it to a website for example), adapts it or sells on or distributes copies to others. Doing these things, being aware that they are unlawful, can also be a criminal act. Civil penalties in the form of damages can be extensive. It is not a defence for a user to say infringement took place innocently.
Under which conditions can I use a work protected by copyright created by another? I was told that using works created by others is simply a quote and thus is always allowed.
Irish law contains a large number of mechanisms whereby a user may seek to gain access rights and rights to use copyright works under licensing mechanisms. However, online use and commercial use in particular will be problematic as a result of rights holder reluctance to authorise free use or unremunerated use in certain instances. The Irish quotation provisions in Section 52(4) CRRA 2000 are, however, quite extensive and do not require remuneration to be provided by the user.
Am I allowed to use music protected by copyright as a soundtrack for a home video that I made and want to upload on a video platform?
No. Irish copyright law specifically protects the reproduction right, the adaptation right and the communication to the public right. It is clear that the upload of music protected by copyright as a soundtrack for a home video to be uploaded to a video platform without the authorisation of the rights holder would very likely infringe all three of the aforementioned rights. Furthermore, under Irish copyright law, authors and performers also enjoy moral rights, so performer’s rights may also be infringed in this scenario.
There are no possible defences in respect of User Generated Content (UGC) over and above the standard defences available under the CRRA 2000. Statutory defences include the following:
- in order to infringe the author’s copyright, a ‘substantial’ part of the work must have been copied. However, users are often reluctant to rely on this exemption as a few bars of music would likely satisfy this threshold to constitute an infringement of the reproduction right;
- in relation to the making available rights under Irish law (which includes the right of communication to the public) posting the music on an online platform would bring the work before a ‘new public’ and thus infringe;
- there are further exceptions under the CRRA 2000 for ‘fair dealing’ (e.g. for the purposes of research or private study; or for criticism, review or for reporting current events). In all cases the use must be conducted in a way that does not prejudice the rights of the copyright owner. In the case of the latter, provided further that the use of the work is accompanied by an acknowledgement identifying the author and title of the work; and
- the use of the author’s works for certain educational purposes is permitted.
It is difficult to see how any of the existing exceptions or limitations could apply to infringement of copyright via UGC.
Am I allowed to give a copy of a work protected by copyright to a family member or a friend?
Irish law does not contain a defence of private copying in respect of the reproduction or distribution of a copyright work. In respect of such acts of reproduction or distribution, it follows that acts of copying or distribution for friends and family are not permitted acts.
Am I allowed to download a work protected by copyright from the internet and does it matter which technology is used and whether I download only parts of the work?
Downloading a work will, in general terms, be an act of copying, irrespective of what technology is used to download and whether all or any substantial part of the copyrighted work is downloaded.
Users are generally reluctant to rely on the defence of ‘insubstantial’ copying, as it is impossible to say with certainty what is meant by ‘substantial’. Each situation is judged on a case-by-case basis. A substantial part of a work can be assessed largely on a qualitative basis rather than in terms of the volume taken. The taking of the main theme in a work and the impression created is a large factor in cases of indirect copying.
Copying will be lawful if the rights holder expressly consents. An example of express consent would be a licensing agreement that does not limit the end-user’s rights of use of and access to copyright material.
Copying may also be lawful if the rights holder impliedly consents or if a statutory defence applies. Implied permission to download (reproduce) could potentially be argued where materials are placed on a website without terms and conditions prohibiting downloading, but there is no clear Irish case law on this point. Under statutory law, there are certain exemptions whereby a work may be used without the permission of the author, including:
- fair dealing for the purpose of research or private study (provided the use is conducted in a way that does not prejudice the rights of the copyright owner);
- fair dealing for the purpose of criticism or review (provided the use is conducted in a way that does not prejudice the rights of the copyright owner and provided further that the use of the work is accompanied by an acknowledgement identifying the author and the title of the work);
- fair dealing, (save for a photograph) for the purpose of reporting current events;
- reproduction, etc. for educational uses (several);
- libraries and certain educational establishments may also lend works without infringing the rights of the author;
- use of quotations or extracts with sufficient acknowledgment that does not prejudice the interests of the owners.
I tried to copy a movie from a DVD to my computer, but could not do it because of something called ‘Technical Protection Measures’. What is that and am I allowed to get around them in order to make private copies?
Technical Protection Measures (TPM) refer to technologies that control and/or restrict the use of and access to digital media content on electronic devices with such technologies installed. TPMs are often used to protect copyright works, for example, through encryption on DVDs.
EU and Irish law protect the right of copyright owners to use TPMs to protect their works, and circumvention of such technology is illegal. No private copying exemption of the kind outlined exists under Irish law.
Am I infringing copyright if I watch a movie by streaming it instead of downloading it from the internet?
Streaming is not treated in any specific way under Irish law. The streaming of content without permission of rights holders could potentially constitute an infringement of both the reproduction right and the making available right.
The issue of whether streaming involves an act of reproduction has not been settled in this jurisdiction to date by either statute or case law.
Under Section 40 CRRA 2000, the owner has the exclusive right to prohibit or authorise others to make the work available to the public through broadcasting or recordings. It is possible that rights holders could rely on Section 40(1)(a) CRRA 2000 when asserting that there has been a copyright infringement (i.e. ‘making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of works through the Internet);’).
It is worth noting that streaming, rather than downloading, could be legal in the context of a licensing agreement (services like Spotify, Netflix, etc.).
No specific defences for consumers are provided for streaming under Irish law.
If copyright-protected works are included into my posts automatically by social media platforms, am I responsible for this and is this a copyright infringement? What if I link to them or embed them in my own website or blog?
Irish law in relation to copyright infringement is found in the CRRA 2000. There are no special provisions relating to social media, but posting or reposting of works owned by others must respect ordinary law. Linking alone, however, is likely to be lawful as Irish courts apply the rules developed by EU institutions. However, internet service provider (ISP) liability rules and the awarding of injunctions to disable subscriber access to ISP services are regulated under Statutory Instrument No 59/2012, as well as ISP/rights holder graduated response agreements, which may ultimately lead to an ISP terminating subscriber access to services.
When I create a work and upload it online, terms and conditions of many sites ask for me to transfer my copyright to the site. Does that mean I lose all those rights in them for the future?
Transfer of rights provisions under Irish law, and contract law provisions generally, apply to the online transfer of rights. It is important to recognise that the nature of the assignment or licence may differ in terms of activity and duration, and good drafting will be important to clearly set out rights and duties. Copyright will also be an important source of remedies if breach of a grant is also a copyright infringement, as the CRRA 2000 has a fuller range of remedies than those available for breach of contract.
My avatar is based on my favourite movie star, cartoon character or sports club. Can I get in trouble for infringement of copyright or any other legislation because of this?
Irish law does not provide any specific guidance on virtual world issues.
How do I know whether a work is offered legally or illegally online?
Irish law does not contain any indicia of when a work is an infringing copy.