Users are generally reluctant to rely on the defence of ‘insubstantial’ copying, as it is impossible to say with certainty what is meant by ‘substantial’. Each situation is judged on a case-by-case basis. A substantial part of a work can be assessed largely on a qualitative basis rather than in terms of the volume taken. The taking of the main theme in a work and the impression created is a large factor in cases of indirect copying.
Copying will be lawful if the rights holder expressly consents. An example of express consent would be a licensing agreement that does not limit the end-user’s rights of use of and access to copyright material.
Copying may also be lawful if the rights holder impliedly consents or if a statutory defence applies. Implied permission to download (reproduce) could potentially be argued where materials are placed on a website without terms and conditions prohibiting downloading, but there is no clear Irish case law on this point. Under statutory law, there are certain exemptions whereby a work may be used without the permission of the author, including:
- fair dealing for the purpose of research or private study (provided the use is conducted in a way that does not prejudice the rights of the copyright owner);
- fair dealing for the purpose of criticism or review (provided the use is conducted in a way that does not prejudice the rights of the copyright owner and provided further that the use of the work is accompanied by an acknowledgement identifying the author and the title of the work);
- fair dealing, (save for a photograph) for the purpose of reporting current events;
- reproduction, etc. for educational uses (several);
- libraries and certain educational establishments may also lend works without infringing the rights of the author;
- use of quotations or extracts with sufficient acknowledgment that does not prejudice the interests of the owners.