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SOPA Ireland Duck Hunt: Killing Canards

Canard: An unfounded or false, deliberately misleading story; a duck.

“I will introduce this imminently, by the end of January.”
-Sean Sherlock, Sunday Business Post, 23rd January 2012

First, I’d to clarify that Minister of State, Sean Sherlock TD, has
emphasised that he has not put forward any proposals to enact a “Stop
Online Piracy” type Law.

– He intends to bring in a vaugely worded law permitting copyright holders to seek injunctions without any explicit safeguards for fundamental rights, including injunctions to block access to websites for Irish users. He may not have called it SOPA Ireland, but let’s not listen to whinges about the characterisation.

Second, I’d like to emphasise that the need to legislate arises from a finding of the High Court in October 2010 that Ireland was not in
compliance with its EU obligations under Copyright Directive 2001/29/EC as the High Court found itself unable, under existing primary legislation, to
grant an injunction against an intermediary.

-Actually, the urgent impulse to legislate comes from the case of EMI Records [Ireland] Ltd and Ors -v- Ireland and Anor which was filed on the 10th Jan this year.

As you will appreciate, failing to be in compliance with our obligations under EU law is a very
serious matter.

– Well, it is the European Commission’s job to police breaches of EU law. They haven’t even said they think there is one here. So, they don’t seem to think it’s that serious. Or, if you prefer, they don’t think we’re not in compliance. Which also wouldn’t be that serious.

Third, I believe it is important to emphasise that no policy change is proposed in the Statutory Instrument. It had been the intention of the Copyright and Related Rights Act, 2000 to provide civil remedies such as injunctions and it was assumed that the Act did, in fact, provide for such remedies until the High Court found otherwise in the case of EMI Ireland & others v. UPC in October 2010. The wording of the proposed Statutory Instrument has been framed in a way which gives effect to the wording of the EU Copyright Directive rather than extending its scope.

-Changing a law is far more significant than changing a policy. It was assumed the original Act did something. Then a court found it didn’t. The SI is now being assumed to do something. A pity that all this assuming can’t be replaced with an explicit statement of what the law should do.

The intended purpose of the proposed Statutory Instrument is not to enact new EU legislation but, rather to restate the position that was though to exist in the Copyright legislation prior to the EMI Ireland case.

-Well, sure. But then, that was the intended purpose of the original act. Look where intending things got us there.

Last July Minister Sherlock held a public consultation in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act, 2000. More than 50 submissions were received from interested parties, providing an excellent overview of all the issues and concerned involved. Minister Sherlock has engaged extensively with interested parties in respect of their views and concerns.

-Odd. Here’s a letter sent from our office on 20th October 2010. We never got an invite.

At the time, the then Minister was only talking about meeting “both sides”- the record companies and the ISPs.
Sean Sherlock took the same “both sides” line on Drivetime with Michele Neylon.
Mind you, after 80,000 people pointed out they were also concerned with his intentions, he arrived at a new formulation “I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder”

The legislative measure is expected to be introduced shortly.

– I think this is where we came in.