Friday, December 17, 2010

Firms hampered by failure to keep law up to date with internet age

I have an opinion piece in today's Irish Times arguing that the Taoiseach's recent comments about reform of copyright law create an opportunity for wider reform. Unfortunately, the Irish Times doesn't allow inline links, so here's a version with relevant links included:
Firms hampered by failure to keep law up to date with internet age

Much of the Irish law governing the internet is archaic, restrictive and hampers growth, writes TJ McIntyre

IN A speech this week, the Taoiseach announced support for a review of European and Irish copyright law, stating “it is time to review our copyright legislation, and examine the balance between the rights holder and the consumer, to ensure that our innovative companies operating in the digital environment are not disadvantaged against competitors”.

This is a welcome development for the Irish internet industry, which has argued for some time that copyright reform would be desirable.

It follows a seminar last month, hosted by Digital Rights Ireland, Google and the Institute of International and European Affairs, where speakers from businesses such as, UPC and Google pointed out the practical problems copyright laws can create.

In particular, one of the reasons why the US has been so successful at encouraging internet innovation is that US copyright law includes a doctrine known as fair use. This permits the use of portions of a copyrighted work so long as the normal economic exploitation of the work is not undermined.

Irish law, by comparison, has no equivalent to the flexible doctrine of fair use.

Instead, there is a finite and restrictive list of exceptions to copyright, hampering the ability of Irish businesses to develop new forms of internet services.

Reform of the law – if it addresses this and similar issues – will help promote the growth of new businesses in this area and avoid the loss of jobs to more internet-friendly jurisdictions, such as the US.

However, this is not a uniquely Irish development. It follows action at European Union level and in other countries such as Britain. Last month, David Cameron said UK copyright laws were out of date and needed to be reviewed to “make them fit for the internet age”.

The Irish Government will have to move quickly to avoid falling behind Britain and other European bodies that have taken the initiative in this area.

It will also be important that copyright not be considered in isolation, as it is just one of a number of areas where Irish businesses have been hampered by a failure to keep the law up to date with the internet.

After a flurry of activity leading up to the Electronic Commerce Act 2000, there has been relatively little reform since.

Consequently, much of the Irish law governing the internet is now a decade old – an eternity in the online world – and is no longer suited for current conditions.

One of the most important areas in need of reform is defamation. A significant risk faced by Irish internet companies is that of being sued for what users say. Under the law as it stands, businesses such as online forums, auction sites and even search engines face a real likelihood of legal action being brought against them, even though they were in no way responsible for what was said and behaved reasonably.

European law does recognise the injustice of this, and provides some protection for these intermediaries. Ireland, however, has adopted a very limited implementation of this European law, so Irish online businesses are much more exposed than those in other jurisdictions.

Remarkably the Defamation Act 2009 ignored proposals for reform of the law in this area.

If the Taoiseach is to succeed in his stated aim of ensuring that Irish businesses are not disadvantaged against competitors, then it will be important to tackle online defamation also.