Minister for State Sean Sherlock is in an unenviable position.

On the 10th of Jan 2012 his government was sued by EMI Ireland for their claimed losses arising from his alleged failure to provide for injunctive relief.

On the 17th January the Chief State Solicitor entered an appearance to that claim. That means the State then had 21 days to put in a defence.

By my, admittedly shaky calculations, this means the State has until the 5th February to enter a defence. They would like, as part of this defence, to say that they have already passed a law bringing in the change EMI have demanded.

This is why the Minister has correctly conceded a debate, while asserting he will still sign an SI at the end. He has a gun to his head.

He simply doesn’t have time to bring forward the primary legislation this matter so urgently requires before the deadline imposed by EMI.

It is difficult to have a full and calm discussion with a hostage.

For this reason, we suggested that a hybrid approach to the knotty problem might be the best outcome from this week’s extraordinary events.

Independent TDs Catherine Murphy and Stephen Donnelly delivered the text of an alternative Statutory Instrument to the Minister today. The aim was to meet the immediate needs of the Government in their requirement to have a law implemented, which ensuring that that law reflected the fundamental rights of businesses and internet users in its implementation. Furthermore, this alternative text provided for what is known as a ‘sunset clause’.

This clause would see the alternative Order effectively self destruct in 2 years time. This would provide plenty of time for the government to address these absolutely critical issues with a full and open debate followed by proper primary legislation, subject to full scrutiny by the Oireachtas.

Nothing the Minister sought in his draft SI has been removed. The additional safeguards of fundamental rights are those which he has already committed himself to, arising from European Court case law. And the implementation the State believes is prudent before the 5th February deadline will still have been achieved.

We look forward to the Minister’s response to this constructive suggestion in the debate, starting now.

The text of our proposed alternative SI, drafted by TJ McIntyre
****

DRAFT OF

STATUTORY INSTRUMENTS

S. I. No. ___ of 2012

____________

EUROPEAN UNION (COPYRIGHT AND RELATED RIGHTS) REGULATIONS 2012

To be made by the Minister for Jobs, Enterprise and Innovation.

I, _____________, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, hereby make the following regulations:

1.​These Regulations may be cited as the European Union (Copyright and Related Rights) Regulations 2012.

2.​The Copyright and Related Rights Act 2000 (No. 28 of 2000) is amended -

(a)​ in section 40, by inserting the following subsection after subsection (5):
“(5A)​(a)​The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

(b)​in section 205, by inserting the following subsection after subsection (9):
“(9A)​(a)​The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

3.​These Regulations shall cease to have effect on 31 January 2014
GIVEN under my Official Seal,
____________ 2012.

_________________________
Minister for Jobs, Enterprise and Innovation.
O.J. No. L. 167, 22.6.2001, p.10.
O.J. No. L. 167, 22.6.2001, p.10.
O.J. No. L. 167, 22.6.2001, p.10.

PAGE

PAGE 3

Sent this evening.

Legitimate Copyright Protection in Ireland: not SOPA – Sherlock
We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with. Ireland is home to some of the world’s most innovative internet companies and we are determined to grow our reputation as a location where smart people and these smart companies can continue to innovate in this fast moving arena.
The last thing innovators need is a culture where the outputs of their creative endeavours have to be locked away or kept secret for the fear of theft. Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.
Going right back to 22 December , 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”. Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished.
It may be useful to explain the background against which the requirement for the amendment to the Copyright and Related Rights Act 2000 has arisen. In the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications). In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s). As you will appreciate, non-compliance with EU law is a very serious matter.
The “Mere conduit” principle provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a “safe harbour” against liability, by virtue of the e-Commerce Directive [2000/31/EC]. However, according to the same directive, this freedom from liability does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.

As far as can be ascertained from the judgment (the State was not a party to the case), the type of injunction sought was to require UPC to prevent infringement of the record companies’ sound recording copyright, through its internet “peer-to-peer” services, possibly involving a “three strikes and you’re out” scenario. This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a “graduated response”. I understand that blocking access to infringing online sites may also have been sought.

Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

The Department of Jobs, Enterprise and Innovation had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not Mr Justice Charleton’s view. The record companies did not appeal the High Court decision and, consequently, the State has not had an opportunity to put forward its views on the legal principles involved nor on the construal of the relevant sub-sections of the Act, which we feel were not fully explored in the judgment.

The Attorney General’s Office was then asked (both by this Department and Department of Communications, Energy and Natural Resources) for its advice as to the implications of the High Court judgement. The prudent course, he advised, would be to introduce a Regulation to ensure compliance. After consultations with the Attorney General’s Office and the Department of Communications, Energy and Natural Resources, this Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties. For the avoidance of doubt, the Government has decided to introduce a Statutory Instrument to restate the position that was considered to exist prior to this judgment.

Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States. These concerns are not based on fact. The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above. It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to. In granting such injunctions the courts must take account of Court of Justice of the European Union judgements. These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.

In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case.

I trust that this information will clarify the issue.