The Irish government implemented the DSM Copyright Directive on 19 November 2021, via a statutory instrument, under the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 (the 'Irish Regulations'). A Statutory Instrument is a Ministerial order and a form of delegated legislation. As a result, there was no debate in the Irish Parliament (the Oireachtas), however the Irish government did hold several public consultations regarding the implementation of the legislation.
European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021
Amendments to existing law i.e. the Copyright and Related Rights Act 2000 (as amended)
The Irish Regulations provide a number of noteworthy changes including:
Updating Ireland's copyright exemptions for text and data mining;
Introducing a negotiation mechanism for audio-visual works on video-on-demand platforms;
Creation of a new right for publishers of press publications in the EU to claim revenue for online uses of their publications by information society service providers;
The implementation of Article 17 (Use of protected content by online content-sharing service providers) without modification;
Clarifying aspects of the fair remuneration and information requirements in respect to authors and performers.
Article 26(2) of the Directive provides that the rights under the Directive acrue from 7 June 2021. Regulation 13 of the Irish Regulations provides for certain rights for to publishers of press publications established in Ireland in relation to the online use of their press publications by information society service providers. These rights shall expire 2 years after the press publication is published, and that term shall be calculated from the 1st day of January of the year following the date on which that press publication is published, but the Regulation dealing with the duration of these rights does not apply to press publications first published before the 6th day of June 2019. There is also a specifc Regulation that states that agreements for the licence or transfer of rights of authors and performers are subject to the transparency obligation set out in Regulation 27 of the Irish Regulations on and from the 7th day of June 2022; this is in line with Article 27 of the DSM Directive.
(6) Paragraph (5) shall not apply to press publications first published before the 6th day of June 2019.
Section 14(2) of the Irish Regulations supplement existing Irish law by amending the Copyright Act on the topic of text and data mining, and contain additional detail regarding the level of security required for the retention of data for text and data mining. Ireland had already introduced text and data mining exemptions in terms of copyright infringement in 2019. The Irish Regulations outline that the person that hosts the data must ensure that any copy of the work or subject matter be stored in a manner appropriate to the nature of the work or subject matter concerned. There is a new provision that the right to engage in text or data mining must '...only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.' Contractual provisions contrary to the provisions in the Irish Regulation on this topic are 'unenforceable'.Section 15(3) of the Irish Regulations provide that the rightsholder can reserve the use of a work by using machine-readable methods, including metadata and terms and conditions of a website or a service. Or where the content is not publicly available online, by clearly communicating the reservation to all persons who have access to it.
Section 14(3) of the Irish Regulations provide that the person responsible for the security and integrity of the networks and databases where the copyright-protected work is hosted (referred to in the Irish Regulations as the "Responsible Person") must ensure that only those with 'lawful access' to the data shall be permitted access to it. In order to satisfy this obligation, the Responsible Person may implement certain security measures, including IP address validation or user authentication. Section 14(4) of the Irish Regulations provide that, in order to satisfy themself of the security/network, the author of the content being mined must: be informed of the making of a copy; , if they request it, be given information on the steps taken to ensure compliance with security requirements; and be entitled to a response as soon as practicable where they request additional security measures.
The Irish Regulations implement the newly created right for publishers of press publications in the EU. They also provide that this right will not apply to private or non-commercial uses of press publications; acts of hyperlinking; or the use of individual words or very short extracts of a press publication. However, the Irish Regulations do not define these terms or provide guidance as to how they should be interpreted, instead just repeating the terms of the DSM Directive itself.
Further exceptions to the right in publication are provided to text and data mining for research and certain commercial purposes in addition to an exception for the digital use of works for teaching or in cultural heritage instiutions.
Section 13(8) provides that, without prejudice to judicial remedies, disputes under the Irish Regulations may be submitted to a mediator in accordance with the Mediation Act 2017.
Regulations 19 and 20 of the Irish Regulations implement Article 17. Notably the Irish Regulations do not provide any guidance regarding the interpretation of the phrase "best efforts", as it is used in Article 17. The Irish laws follow the language contained in the DSM Directive very closely. They do not address the requirement in Article 17(7) that works that do not infringe copyright must not be blocked in any more detail than the DSM Directive itself.
Section 24 of the Irish Regulations addresses out-of-court settlements in Article 17 disputes. Under the Irish Regulations, disputes may be submitted to mediation in accordance with the Mediation Act 2017, or where appropriate, to arbitration in accordance with the Arbitration Act 2010. It remains to be seen what dispute type would be deemed appropriate for arbitration.
Chapter 3 deals with access to and availability of audiovisual works on video-on-demand platforms. Section 12 of the Irish Regulations provide that parties facing difficulties related to the licensing of rights may engage in mediation within the meaning of the Mediation Act 2017. Any mediator engaged for this purposes must provide assistance to the parties with their negotiations and help the parties reach agreements, including, where appropriate and at the request of the parties, by submitting proposals to them.
The principle of equitable remuneration for authors and performers applies for all cases of transfers or licensing of exclusive exploitation rights, with the exception of software authors. Section 26 of the Irish Regulations provide that appropriate and proportionate remuneration should be proportionate to the actual or potential economic value of the licensed or transferred rights. The author/performer's contribution to the overall work and all other circumstances, such as market practices, the actual exploitation of the work and merchandising revenues, will be considered when assessing appropriate and fair remuneration. The Irish Regulations address the author's right of revocation, with instructions about how and when this right is exercised.
Section 27 of the Irish Regulations provide additional detail regarding the transparency obligations contained in Article 19 of the DSM Directive. Under the Irish Regulations an author or performer who has transferred or licensed their rights shall at least once a year, be provided with (i) a detailed description of how any work or performance has been exploited worldwide during that period; (ii)an itemised list of the euro value of all copyright revenues, including merchandising revenues, generated worldwide during the period; and a (iii) notification of the author/performer's rights under the Irish Regulations.
Section 27 also provides further detail regarding the timing of requests for additional details between authors/sub-licensees/first contractual counterparts providing that the additional details must be provided as soon as practicable after receipt of the request, and dealing with the format for the information that must be supplied. Any agreement between an author or a performer and his or her contractual counterpart to keep information shared under the Irish Regulations confidential does not affect the right of an author or a performer to use the shared information to exercise his or her rights under the Irish Regulations.
Public consultations in Ireland have been split in the following Papers: