Ireland faces up to copyright battle

Date

Your Name,
Your Address

TD's name
Preferably their constituency address,
if not use Dáil Éireann, Dublin 2.

Dear Name of Politician,

I am writing to you on a matter of great personal and public concern, the Copyright and Related Rights Bill which comes before the house this autumn.

Changes made to the Bill in Seanad Éireann, following representations by the National Newspapers of Ireland (NNI), particularly affect journalists who are employees or staff members. But the Bill seriously affects all journalists, including freelancers, photographers, researchers, cartoonists and public relations professionals. The Bill also raises questions of exploitation, theft, intellectual freedom, cultural diversity, freedom of information and personal integrity.

At present, the bill provides for a copyright regime found only in the United States and the UK and would appear to contravene the Universal Declaration of Human Rights and the Berne Convention, a convention which is honoured by every other EU country except - surprise, surprise - the UK.

The sections which most affect staff journalists are Section 23 (1) a, and Section 23 (2). Following lobbying by the NNI, Section 23 (1) a was inserted into the Bill with the effect of denying first ownership of copyright to a journalist who is an employee or staff member: instead ownership will rest with the newspaper, PR agency or, most probably, a holding company. This ends the protections in the Copyright Act 1963 where a journalist's employer has exclusive first use of his work and effective joint copyright pertaining to it, thus ensuring that both employee and employer share in the benefits of syndication, re-publication or further exploitation of the work. Internationally, the commercial exploitation of copyright is distributed equitably among its originator and distributor. In addition, Section 23 (2) severely restricts journalists, stating that an author "in the course of employment by the proprietor of a newspaper or periodical" may use an article for any purpose other than making it available to newspapers. I am a bi-lingual journalist, happily working as Gaeilge agus Béarla, but I will have to stop my less profitable work in the Irish language if this measure is passed.

The two sections were introduced in Seanad Eireann with the claim that they bring Irish copyright law in to line with the UK and the United States. But these new measures put us out of step with Europe where greater protection is given to cultural heritage and international humanitarian laws. Britain's copyright laws are so out of step, that European jurists refer to them as "the Anglo-Saxon anomaly"! According to Article 27 of the Universal Declaration of Human Rights:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Independently of the author's economic rights and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification or other derogatory action in relation to the said work which would be prejudicial to his honour or reputation.

Copyright in all European Union states, apart from the UK, cannot be held by a legal entity and must be held by a person. The only exception to this is where companies are formed by creators specifically to collect and distribute royalties as a matter of convenience to the original creators. Indeed everywhere in the European Union, apart from the UK and Ireland, an author cannot waive his personal rights of attribution and integrity, even if he wants to for the short-term benefit of a fat cheque from a newspaper company. This is because, international law holds that an individual cannot sign away basic human rights.

To date the NNI has not addressed the concept of the public interest in this debate. There are sound ethical reasons for ensuring that national legislation should adhere to international law. Arguments put forward by powerful vested interests are no justification for not adhering to these laws. Were economic necessity to become the imperative then the need to maximise profit would supersede all other interests. Staff members have always held copyright. It is therefore impossible to argue that granting it in the future would damage the employers. The high profitability and expansion into digital media of Irish newspapers has shown that conforming to the accepted international copyright law has not commercially disadvantaged these organisations. Newspapers and broadcasters operate in competitive markets admittedly, but commercial companies should not seek to improve their competitive position by undermining the internationally-recognised rights of their employees.

In a country where media ownership is severely concentrated, handing over journalists' and authors' copyright on a plate gives existing Irish publishers an effective and unfair barrier against new entrants in the emerging digital media market. Not only would this work against media diversity, it would stunt the development of Irish-based internationally competitive digital media companies and their ability to create high-value jobs. The Bill, if enacted in present form, will give to one media group in particular, Independent Newspapers, a massive copyright advantage over all others. This group dominates the national daily, Sunday and evening newspapers market and dominates the regional newspaper market.

Irish journalists have allowed institutions, including schools and libraries, free copying of their material. Journalists have largely sacrificed commercial benefit from their copyright in the public interest. Because journalists employed by newspapers have not insisted previously on reaping the benefits of their copyright it has been suggested that changes in the law would make no material difference. However the protection given previously to copyright has been critical in ensuring that their journalistic work is not abused, distorted or misused by employers or others.

No employer owns the originality of any journalist, whether that originality reflects the diligence of research or the snappy prose style. Yet these elements are invested in the work by the staff journalist. Therefore, the author must be seen as the copyright holder, even when the author is an employee.

Journalists must not be treated as a second-class citizen in the domain of intellectual property. Throughout, this bill grants rights to musical performers, authors of fiction and other producers of intellectual property, but denies those same rights to journalists. Why should Bono or Roddy Doyle be allowed decide how their work is commercially or politically exploited, but I, a journalist, be denied moral rights, integrity rights and rights of paternity? For example, if this Bill is passed in its present form, staff journalists will be unable to insist that their work does not appear alongside advertisements for unsavoury "health clubs" and "massage parlours". The Bill takes a very narrow view of syndication as an economic activity, with no implications other than for the profitability of a publisher. The European Federation of Journalists have documented many cases around Europe where the rights of copyright, moral and paternity rights have contributed to the protection of sources and guarded against improper use of independent editorial material for advertising, public relations or political propaganda.

There are other public interest issues. This Bill will allow corporate entities or individual employers to create literary "data warehouses", which could seriously damage the cultural, educational, diversity of media and research interests in Ireland. In future, Irish citizens will be no longer be deemed originators of literary and intellectual property, these works will be fully owned by corporate entities who will hold infinite copyright to that work.

Paternity and the right of journalists to have their work credited with a "by-line" is not just a pandering to professional vanity. The public has a right to know who has written an article, taken a photograph or drawn a satirical cartoon. The public also has a right to know if such a work has been altered or digitally manipulated in a context that has violated the original meaning of the work. The creator also has the right to ensure that his or her work is not abused. The copyright, moral rights and integrity rights make it possible for the individual creator to uphold the NUJ Code of Conduct and to exercise a control on how copy and photographs are used.

Please note that libel law does not allow this legal separation of a journalist and their work and places unlimited liability on journalists, staff or self-employed. But this Bill will create a totally contradictory and discriminatory law where the same court could recognise that a journalist has total possession over an article judged to be libellous but that the copyright and commercial benefit lie with a corporate entity.

Thank you for your consideration of this matter. The Copyright and Related Rights Bill is the largest single piece of legislation to ever pass through the Oireachtas, but I have tried to raise my many concerns as concisely as possible.

My union, the National Union of Journalists, is closely monitoring the progress of the Bill through its last stage in the Dáil. Please vote and amend this bill to ensure that it is just. It is worth noting that the first ever legal precedent for copyright was contained in a judgment given against St. Colmcille in the 6th century. As we enter the new millennium, now is not the time to take a backwards step.

Keep up the good work,
Beir bua agus beannacht,