Mac Síthigh questions whether or not a technologically-neutral approach is really the best approach to media law and regulation. Building on the works of notable Canadian scholars and , Mac Síthigh finds that it is time to reflect and fall back on old notions of technology. The medium is still the message.

Furthermore, Mac Síthigh contends that knowledge of the nature of the technology is essential for regulation – an idea that harkens back to an . Understanding the essential characteristics of each medium “is absolutely necessary,” he said.

“We need to stop thinking about future-proofing as the answer,” Mac Síthigh argued. He further contended that there is a need for a more carful understanding of the role of the medium of communication in its regulation.

What happens when you take the nuance out of media law and regulation? You get terms such as , which, according to Mac Síthigh, is used in the United Kingdom. He says that the intention was to fend off arguments of regulating and as such “breaking” the Internet, but has the potential to create more problems than it solves.

This specific term raises a number of questions: What activities and projects are included and excluded by the term “T��-�������”? What exactly makes a TV programme, a TV programme, and not something else? Where exactly is the line drawn?

“Television itself is changing,” Mac Síthigh said. “The idea that one rule would fit all is very difficult to sustain in practice,” he said, furthering his argument that regulation should not be based on an attempt “to be technologically-neutral”.

Beyond careful consideration of language, it is also important to thoroughly consider legislative goals, which Mac Síthigh pointed out are not always easy to work out. However, if legislative goals are not clear and well thought out, the result could be different tax breaks for different methods of distribution with no clear reason for the difference, he said.

Mac Síthigh used many examples throughout his talk, which suggest that a technology-neutral approach to media law and regulation is not particularly desirable given the complexity of the constantly changing media landscape. While arguing for paying close attention to the media technologies themselves, Mac Síthigh suggested that there is the potential that policy goals can be fulfilled by tweaking IP law as well as through regulatory bodies, such as the Canadian Radio-television and Telecommunications Commission. For Mac Síthigh, which regulators have the potential to take on the burden of some of the future-looking issues that need to be addressed.

Amanda Oye is a PhD Candidate in the 91��ɫ & Ryerson Joint Graduate Program in Communication & Culture. Her research focuses on news media policy and practice, with an emphasis on the on-going development of public broadcasting in Canada, Great Britain, and Australia.

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Of course, Ireland is not the only place where 'copyright reform' is being discussed. The neighbouring UK, for one, has had a pair of major reports (Gowers in 2006 and last year), with further work now taking place on translating some of the recommendations into legislation. Readers of this blog will be more than familiar with the Canadian debate of the last decade. However, the terms of reference of the Irish review are worth thinking about, as they do mark the Irish process out as distinctive. It's probably no surprise that there is a specific reference to identifying and responding to 'barriers to innovation', given the attempts by the Irish government to promote ICT (for indigenous industry and inward investment) and Ireland's current economic troubles. And as with the Hargreaves process in the UK, the Committee (made up of two law professors and a solicitor) was asked to look at the question of fair use.

The discussion paper does all of this, and more. It drew upon the responses to an initial call for submissions (which are published here) and a lively public meeting. 86 (!) questions are asked in the discussion paper (for a second round of comments, which closes this month), with the last being 'have we forgotten anything?'. Although firm conclusions have not yet been formed (for example, on a fair use test vs new statutory exemptions), draft statutory language has been included in various cases. The Committee is also floating some proposals of its own, such as that for a Copyright Council of Ireland. Such a Council would be independent but recognised by statute (along the lines of the new ), and might deal with licensing, alternative dispute resolution, public awareness, and best practices, as well as being a forum for discussion (e.g. between rightsholders, users, libraries and others). The report also reminds us of one of the most powerful (and underappreciated) provisions of Irish copyright law, that acts permitted under the Act are permitted 'whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act' (section 2(10) of the 2000 Act). The Committee asks whether this could be strengthened further by declaring all such terms or conditions void.

Readers might be particularly interested in the reviews of how other jurisdictions have tackled problems, and the Committee has carried out particularly extensive searches of foreign law. As such, draft clauses on issues like parody, non-commercial user-generated content, and data mining are informed by Canadian and Australian proposals, in particular. In other cases, the report returns to core sources (e.g. the Berne Convention) and presents new, provocative clauses. One such example is draft clause 106E, on 'innovative works'. Chapter 10 of the report sets out the merits and demerits of legislating for fair use, complete with a lengthy review of the legal and economic research on the subject. Israel, Singapore, and the Philippines are discussed. It's likely that the resulting draft clause 48A will draw plenty of comments. What do IP Osgoode readers think of it?

Technology is also a recurring theme. There are proposals (again, for comment rather than a confirmed view) on the status of Internet links to other Internet sources,'marshalling' of news, back-up copies (i.e. of material other than computer programs, which is already OK), distance learning, and format shifting by heritage institutions (such as libraries or archives). Technology is also a source of some controversy, and not long before the publication of the discussion paper, things became a little more complicated. The Irish government proposed (and ultimately adopted) secondary legislation, in response to a 2010 High Court decision () that Irish law did not provide for injunctions against intermediaries, in a case brought by rightsholders against an ISP. The consideration of this legislation (dubbed and a threat to Ireland's reputation as a tech-friendly place by its critics, defended as by its supporters) brought one particular copyright issue right into the centre of public debate. There has been some confusion about the two processes, but we can at least hope that the degree of interest in copyright law will increase the range and quality of submissions to the Committee.

Daithí Mac Síthigh is a lecturer in law and director of the LLM Information Technology & Intellectual Property law at the in the UK. He blogs at .

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