Journal of Intellectual Property Law & Practice Advance Access originally published online on September 29, 2009
Journal of Intellectual Property Law & Practice 2009 4(11):833-838; doi:10.1093/jiplp/jpp158
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© The Author (2009). Published by Oxford University Press. All rights reserved.
Public lending right in Ireland: dead poets need not apply
Legal context: In 1992, Directive 92/100/EC required Ireland to enact a remuneration scheme in respect of authors whose works were made available by public lending. Ireland missed the deadline and when the Directive was transposed, with effect from 2001, the ECJ ruled that, in exempting all public libraries from the duty to pay remuneration to authors and peformers, Ireland had exceeded the limits of the cultural purposes derogation in the Directive. The Copyright and Related Rights (Amendment) Act 2007 and SI No. 597 of 2008 set up a Public Lending Right (PLR) system, effective from March 2009.
Key points: The Irish PLR is closely modelled on the UK PLR system that pre-dated the Directive by a decade and in following the UK model, in particular by making the right conditional on registration and preventing the estates of authors who died between 1994 and March 2009, the legislation fails to meet the rationale that lay behind the 1992 Directive and the legitimate expectations of authors following the passage of the Directive. The scheme is financed by the Irish taxpayer and is administered by the Library Council, the body in charge of administering the public library system. As the rules make the author entitled to whatever is left after expenses have been deducted, one fears that this may not be very much in the straitened financial conditions that Ireland is currently in. The first distribution will be made in 2010 when the ‘per loan’ statistics are available.
Practical significance: It will not be possible to evaluate the Irish PLR system until the first distribution is made, but we are going to see that the estates of Irish authors who registered in the UK but who died before registration was possible in Ireland will get cheques from the UK PLR authority but not from the Irish body. The fact that the Directive has been narrowly construed to exclude authors of other than literary works and performers is a cause of concern and while Ireland is not alone in taking this approach, the European Commission needs to re-examine the 1992 Directive and whether EU states have broadly ignored some key objectives that prompted its adoption by the Community legislator.
Correspondence: * Robert Clark, School of Law, University College Dublin. This article is dedicated to the memory of Anthony Quinn, who fought long and hard for Irish author's rights, and was the author of ‘Public Lending Right : Authors Coin or Librarian's Burden?’ (1997) 2 IIPR 16. Email: Robert.Clark{at}ucd.ie