At the end of his scholarly piece on whether the Rules of the Houses of the Oireachtas applied to non-members, Fergal correctly pointed out that while the House rules trying to control how Oireachtas video was used might lack teeth, they did not deal with the question of copyright.
The portion of the Copyright Act of 2000 which deals with copyright on proceedings in the Oireachtas is Section 71
71.—(1) The copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.
(2) Subsection (1) shall not be construed as authorising the copying of a work which is itself a report of the proceedings which has been lawfully made available to the public.
The question arises then: is copying, adapting, quoting or otherwise using the streaming footage from the Oireachtas an infringement on the House’s copyright?
Well, Section 71 (1) tells us that we can do anything for the purpose of reporting proceedings. The nature of that report- be it positive or negative or a mixture of both- isn’t relevant.
Section 71 (2) makes sure we realise that 71(1) doesn’t mean that we can start to copy other people’s reports with impunity. No taping Oireachtas Report by RTE from the telly and then rebroadcasting it on your own station.
This position relies on the meaning of the word ‘report’. A reasonable argument can be made that if a ‘report’ were to include the raw streaming footage of what is happening in the chambers, then we would not be allowed to copy it. But if a ‘report’ were something made from that streaming video (ie it required some further intervention to turn it into a report) then it would be a legitimate source of footage.
That the latter is the case is possible given the existence of Section 71. If the raw, unmediated stream of events from the chambers were to be, in themselves, a report and therefore under copyright then Section 71 (1) would be a dead letter, in relation to video footage when read together with Section 71 (2). As nobody other than the official in-house system are permitted to record the business of the chamber, there is no other source of footage from the House. Therefore any report made using the official footage would be liable to a claim of breach of copyright- making the rights granted by Section 71(1) worthless.
It is a long-standing principle in jurisprudence that if there are two competing meanings which can be put on a piece of legislation, and one would mean that the Oireachtas had passed a meaningless law, the courts will presume that the legislature (acting as a rational agent), did not intend that meaning and will apply the alternative.
However, we might also consider the alternative case- that the stream is a report, and therefore is protected by S 71(2). This could arise because the wording of S 71(1) could be argued to have been intended to protect old fashioned Dail Reporting. That is, it prevents a person who has said something in the Dail they might wish didn’t become public knowledge from blocking the reporting of the text of that speech by claiming copyright over it.
Nonetheless, even if that were to be the case, it is interesting to note that S. 71(1) uses the phrase “copyright in a work” while S.71(2) only claws back the right to control copy. S. 37 of the Act defines the rights of an owner of the ‘copyright in a work’ as being the power to restrict a) copying, b) making available and c) adaptation. So the rights to make available and adapt the Dail footage remain protected by Section 71(1).
Let’s turn our attention to another interesting part of the Copyright Act 2000 we haven’t yet discussed. Section 52 deals with the permitted use of extracts, quotation and incidental uses of copyrighted material in a new work. It’s short, and worth quoting in full.
52.—(1) The copyright in a work is not infringed by its inclusion in an incidental manner in another work.
(2) The copyright in a work is not infringed by the making available to the public of copies of anything the making of which was not, by virtue of subsection(1), an infringement of the copyright.
(3) A work shall not be regarded as included in an incidental manner in another work where it is included in a manner where the interests of the owner of the copyright are unreasonably prejudiced.
(4) The copyright in a work which has been lawfully made available to the public is not infringed by the use of quotations or extracts from the work, where such use does not prejudice the interests of the owner of the copyright in that work and such use is accompanied by a sufficient acknowledgement.
Applying this to our imagined Daily Show-style use of quotes and clips I think it is fair to say that, over and above the provisions of Section 71, there is a right to use ‘quotations or extracts from’ the streaming Oireachtas footage (which certainly falls into the category of ‘a work which has lawfully made available’) provided the interests of the owner are not prejudiced and you cite the source of same.
‘The interests of the owner of the copyright’ are presumably the copyright interests, as the phrase isn’t defined elsewhere in the act and they are the relevant interests within the Copyright Act.
In conclusion, the use of footage from the Houses of the Oireachtas stream is governed by the Copyright Act 2000. Section 71, read in conjunction with Section 37, certainly permits the adaptation and making available of that work and may also permit the copying of same. Section 52, and in particular Section 52(4), permits the citation and quotation of that footage- a right distinct and in addition to any rights granted by Section 71.
Note: Special Thanks to Fergal Crehan BL and Dathí Mac Síthigh of Lex Ferenda for their assistance and thoughts in the construction of this article. All the errors and omissions are mine, of course. If only I could find them. You shouldn’t rely on what I’ve said above as a definitive statement of law- it’s only my opinion. If you’re in any doubt, contact a friendly local solicitor for personal advice.