Call McGarr Solicitors on: 01 6351580

EMI Records [Ireland] Ltd and Ors -v- UPC Communications Ltd and Ors : Digital Rights Ireland Ltd granted leave to move Motion to Intervene as Amicus Curiae

This matter was returnable today for directions by Mr. Justice Kelly in the Commercial Court.

The High Court Record Number of this matter is 2012/12381.

Mr. Ronan Lupton BL, appearing on behalf of Digital Rights Ireland Ltd and instructed by McGarr Solicitors applied to the court for leave to serve a Notice of Motion, together with grounding affidavit, seeking to intervene in these proceedings as a friend of the court, or Amicus Curiae.

The court set a date for the hearing of this Motion of the 25th February 2013 at 2pm. Written legal submissions to be filed and served by the 8th February 2012.

No party objected to the application.

The Food Police?

The finding by the Food Safety Authority of Ireland of horse meat in frozen beef burgers invokes the following legal provisions:

A)            Articles 14 (1) and 16 of Regulation (EC) N° 178/2002 on General Food Law;

B)            Regulations 5 (1) and 6 of the European Communities (General Food Law) Regulations 2007.

Under Article 14 (1) of Regulation No. 178/2002, “Food shall not be placed on the market if it is unsafe”. “Unsafe” includes food unfit for human consumption.

The Regulation goes on…

“In determining whether any food is unfit for human consumption, regard shall be had to whether the food is unacceptable for human consumption according to its intended use, for reasons of contamination, whether by extraneous matter or otherwise, or through putrefaction, deterioration or decay.”

So, food is contaminated if it contains extraneous matter.

Article 16 of Regulation No. 178/2002 provides;

“Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.”

Under Regulation 5 (1) of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator places unsafe food on the market or otherwise contravenes Article 14 of the EC Regulation.”

Under Regulation 6 of the European Communities (General Food Law) Regulations 2007;

“A food business operator is guilty of an offence if the food business operator fails to comply with Article 16 of the EC Regulation in the labelling, advertising or presentation of food.”

So, citizens will want to know if there will be prosecutions for the Irish beef burger incident.

Sack the Minister

When the Food Safety Authority of Ireland tested a range of Irish frozen beef burgers, purchased from Irish and British supermarkets, it found evidence that they contained horse meat and/or pig meat.

It found that the source of the offending meat was the respective manufacturer of the beef burger. In the case of Silvercrest Foods Ltd. almost 30% of one burger constituted horse meat.

These facts were sufficient evidence to prosecute the various manufacturers (and the retailers).

Prosecutions are necessary because of the overriding objective of securing the safety of consumer food in the EU. If you are a manufacturer it is easy to ensure the safety of the food produced in your factory; you make sure that your sources are safe.If you fail to do this you should be prosecuted.

Under EU law Ireland is obliged to prosecute for breaches of EU law and the known facts were evidence of breaches of EU law and Irish law. The person responsible for ensuring there are prosecutions is the Minister for Agriculture and Food. That means there will be no prosecutions because he has shown he does not agree with the law.

He thinks that negligence is insufficient to get a conviction or even to bring a prosecution. He implies that proving knowing and deliberate adulteration of food is what is required to bring a prosecution and get a conviction but this is not and should not, be the case.

His is the latest in a long line of Irish failures. Ireland is an extreme example of a noted problem; regulatory capture. When a regulated industry (such as banking) exerts sufficient influence, its regulator becomes its champion and defender instead of its regulator.

Here we go again.

The Irish horse meat Dictionary

Horse meat: An additive to burgers. It is perceptible only by means of DNA testing and/or the use of an electron microscope (except in France where its very colour, taste and hooves trigger the little grey cells of French sleuths).

Money back Guarantee: If you return your complete horse meat beef burger, with its wrapping and a receipt, or other indubitable evidence of purchase from our supermarket, you will receive back your money that you paid to buy the burger in the first place.

Seriously: As in “…we take the safety of our products very seriously…”. We take offence if anyone challenges what we say about our products.

Statement: As in “…issued a statement…” A defence of Irish beef processors by the Minister for Agriculture and Food.

Additive: Stuff found in [Irish, possibly all] beef burgers.

Consumers: People who destroy evidence of wrongdoing by eating beef burgers.

Microscopic: The size of the horse meat portion of Irish beef burgers.

Label: A statement of our sincere beliefs about the contents of our burgers. (Also; A statement of affairs relayed to us by others and sincerely believed by us.)

Accidental: The finding of absence of fraud, malice or greed as will be reached by the investigation, the parameters of which are almost settled.

Not Reassured

The Food Safety Authority of Ireland has analysed selected consumer products sold in Ireland. These products are probably also sold in the UK. By and large they were “manufactured” in Ireland.

The products are, allegedly, burgers made of beef meat. (1)

It is true, they contained some beef meat. However, they also contained some pig and horsemeat. The proportions varied from sample to sample.

There is one conclusion to be drawn from this; it is not wise to trust the meat processing industry. (We have always known this, butchers were traditionally excluded from serving on juries in criminal trials.) (2)

In fact we still do not trust the meat industry. Every meat processing plant has a vet in attendance. The vet is employed by the State and the vet’s job is to ensure that the plant is operated in accordance with law.

What else do we do?

Well, the FSAI survey is in fact a follow-up check of the output of the plant(s) and the State surveillance. Probably, we also assume that grocery multiples will try to ensure that the product they buy from meat processors is what the processors claim it is. (3)

What do we resolutely not do?

We refuse to empower the consumer to take effective action against such consumer abuse. We know that each individual consumer is helpless to take effective direct personal action. We also know that there are tried and tested remedies for consumers, if they act collectively, but in Ireland we will not permit that. No amount of Ministerial hand-wringing will be a substitute for permitting class actions in Ireland.

(1) Here, “allegedly” is appropriate. The wrapping on the burgers made allegations (known to lawyers as “representations”) about the products. Journalists need to be careful, but, when ABP’s Silvercrest Foods claims it is itself investigating the presence of horse meat in a burger it produced, that’s an admission about the horsemeat and the product. There is no need to be pusillanimous by saying the burger was alleged to have horse meat in it.

(2) Probably by lawyers; a man who kills animals is inured to death; he will not readily feel for a fellow human facing a death penalty.

(3) When I say “we” here, I mean the State, not the citizens.

Irish Newspapers and Links: A welcome evolution of position

It appears as though there has been some evolution in the position of the Irish Newspaper industry since Friday, when the issue of whether links were subject to copyright was addressed on RTE’s Morning Ireland, the country’s most listened-to radio programme.

As of this afternoon. Newspaper Licensing Ireland have placed a prominent statement on their homepage. It reads

Statement on behalf of Newspaper Licensing Ireland Limited regarding use of newspaper content

For personal use: NLI never requires or requests a licence for personal use of newspaper content.

For commercial use: NLI does not require a licence from any organisation which only displays or transmits links to newspaper content. A licence is required when there is other reproduction of the newspaper content, such as display of PDFs or text extracts.

6 January 2012

This is a welcome evolution of the earlier Newspaper Licensing Ireland Limited position set out in correspondence as recently as the 19th December 2012 with our office that

“It is both a breach of our members’ intellectual property rights and their website terms and conditions for your client or any other entity to link to its (sic) websites other than for personal use.”

The newspaper industry, and the Irish Times in particular, should be congratulated on the responsiveness shown to this issue as it gained public attention over the past seven days. Our clients, Women’s Aid, are now in a position to consider whether they wish to purchase a licence from the Newspaper industry with the benefit of the additional clarity today’s statement provides.

Of more general social value, the damaging assertion that permission was required (and could be refused) to link to another website has been abandoned.

For the sake of the country’s free exchange of views, this is a significant development.

***

You can read the background to this story on our posts:

2012: The year Irish newspapers tried to destroy the web

1st Letter to Newspaper Licensing Ireland on behalf of Women’s Aid

 

2nd Letter to Newspaper Licensing ireland on behalf of Women’s Aid

Reaction to Irish Newspapers demanding money for links

 

Some Reaction to Irish Newspapers demanding money for links

The Irish Times website challenging the Daily Mail for most irritating block-up when you just want to go to the blasted site.

On Sunday night, we published our post 2012: The year Irish newspapers tried to destroy the web on the efforts of the Irish newspaper industry to assert property rights over links.

The post has provoked a good deal of comment. For convenience, we have collected up a few of the responses.

Hugh Linehan, the Editor of IrishTimes.com:

Prof Jay Rosen, Professor of Journalism, NY University:

Prof George Brock, Head of Journalism, City University London:

Bora Zivkovic, Blogs Editor at Scientific American. Visiting Scholar at NYU school of journalism:

Newspapers demand to be paid if you link to them by Rob Beschizza, BoingBoing.net

To be completely clear about it, this isn’t about fair use, fair dealing, excerpts, headlines or anything like that. It’s about links
…
It’s as if the newspaper business was still run by clueless middle-aged white drunks, or something.

Prof Jeff Jarvis, Associate Professor City University of New York, Director of the Tow-Knight Center for Entrepreneurial Journalism

Dermot Casey, Tinstring

Former CTO of Storyful.com:

It’s wrong, pure and simple. No if, no but and no maybe about it. It’d be interesting if they went after Google. Still wrong but interesting. And yet it’s not Google they went after, it’s Women’s Aid. What does that say about the mentality and morality of the National Newspapers of Ireland and their agents?

Charles Arthur, The Guardian

Your eyes will pop at the amounts.

I would link to any coverage the matter had received in Irish Newspapers but there still has been none.

2012: The year Irish newspapers tried to destroy the web

The Irish Times

This is not a joke.

I have started with that clarification, because as you read this you will find yourself asking “Is this some kind of a joke?” I thought I would be helpful and put the answer right up at the start, so you can refer back to it as often as you require.

This year the Irish newspaper industry asserted, first tentatively and then without any equivocation, that links -just bare links like this one– belonged to them. They said that they had the right to be paid to be linked to. They said they had the right to set the rates for those links, as they had set rates in the past for other forms of licensing of their intellectual property. And then they started a campaign to lobby for unauthorised linking to be outlawed.

These assertions were not merely academic positions. The Newspaper Industry (all these newspapers) had its agent write out demanding money. They wrote to Women’s Aid, (amongst others) who became our clients when they received letters, emails and phone calls asserting that they needed to buy a licence because they had linked to articles in newspapers carrying positive stories about their fundraising efforts.
These are the prices for linking they were supplied with:

1 – 5 €300.00
6 – 10 €500.00
11 – 15 €700.00
16 – 25 €950.00
26 – 50 €1,350.00
50 + Negotiable

They were quite clear in their demands. They told Women’s Aid “a licence is required to link directly to an online article even without uploading any of the content directly onto your own website.”

Recap: The Newspapers’ agent demanded an annual payment from a women’s domestic violence charity because they said they owned copyright in a link to the newspapers’ public website.

This isn’t the case of a collection agent going rogue.

The National Newspapers of Ireland is the representative body for Irish Newspaper Publishers. The 15 member titles in the NNI are

  • Irish Independent
    Irish Examiner
    The Irish Times
    Irish Daily Star
    Evening Herald
    The Sunday Independent
    Sunday World
    The Sunday Business Post
    Irish Mail on Sunday
    Irish Farmers Journal
    Irish Daily Mail
    Irish Daily Mirror
    Irish Sun
    Irish Sunday Mirror
    The Sunday Times
    Irish Sun Sunday

In their submission to the Copyright Review Committee in July 2012 those 15 newspapers asserted baldly

“It is the view of NNI that a link to copyright material does constitute infringement of copyright”. (Section 7 National Newspapers of Ireland Further Submission to the Copyright Review Committee)

Women’s Aid received their demand from Newspaper Licensing Ireland Ltd (NLI), a collection agent for the Newspaper publishers. Here’s what that agent has to say about the status of links to newspaper websites:

“It is the view of NLI that a link to copyright material does constitute infringement of copyright”
(Page 5, Newspaper Licensing Ireland Ltd Further Submission to the Copyright Review Committee)

The National Newspapers of Ireland describes the relationship with NLI like this:

Newspaper Licensing Ireland Ltd (NLI) is a dedicated collecting society that represents the copyright interests of Irish national and regional newspaper publications, including National Newspapers of Ireland.

The National Newspapers of Ireland and Newspaper Licensing Ireland both have the same address; Clyde Lodge, 15 Clyde Road, Ballsbridge, Dublin 4.

Given this congruence, it is unrealistic to treat Newspaper Licensing Ireland’s demands and assertions as something separate or distinct from the demands of the Newspaper industry itself.

Every one of those 15 newspaper titles- and all the regional titles who are members of Newspaper Licensing Ireland- have endorsed the proposition that they have rights over links to their websites. Furthermore they want an explicit change in the law to back up their demands for money if you link to their websites.

Here’s what the NNI say:

“NNI proposes that, in fact, any amendment to the existing copyright legislation with regard to deep-linking should specifically provide that deep-linking to content protected by copyright…is unlawful.”
(Section 7 National Newspapers of Ireland Further Submission to the Copyright Review Committee)

Here’s a test. Ask any of the Editors of any of those newspapers listed above the following question. “Do you accept that people have the right to link to any page on your website?” Ask them online, or at a public meeting, perhaps. They will hotly respond by answering a question they haven’t been asked. They will say that they have always given people permission to link to their websites, when asked.

Here’s the NLI’s protest:

“on every occasion that NLI has been approached by a third party seeking to licence a form of copying or transmission not covered by any of our existing standard licences, we have sought to find a solution to that company’s requirement.”
(Page 1, Newspaper Licensing Ireland Further Submission to the Copyright Review Committee)

Here’s the Editor of IrishTimes.com, Hugh Linehan:

Both the above statements are worded to maintain the position that linking to newspaper websites is within the grace and favour of newspapers to grant- or by implication to refuse. And, by further implication, to charge for if they so wish. You can see the kind of prices they’re thinking of, above.

None of this has received any coverage in any newspaper for sale in Ireland. Not a drop of ink has been used to report on the print media’s lobbying to have their assertion of copyright over links written into legislation, in any Irish newspaper.

You can read about this story in the New York Observer,on Techcrunch, on Techdirt or, if you prefer not to look to the international press you can turn to Michael McDowell’s news source of choice Broadsheet.ie. But, apparently, it isn’t a story for Irish newspapers.

The web is built on links. Links are what has made it so powerful and so threatening to established institutions of power.

Here’s Tim Berners-Lee, writing on Links and Law Myths in April 1997 under the heading Myth One

Myth: A normal link is an incitement to copy the linked document which infringes copyright.

The ability to refer to a document (or a person or any thing else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.
…
I received a mail message asking for “permission” to link to our site. I refused as I insisted that permission was not needed.

There is no need to have to ask before making a link to another site.

In 2012, Irish newspapers- The Irish Times, The Irish Independent and all the others- are trying to make this myth a reality here.

This is not the story of a rogue agent.

This is the story of a rogue industry.

UPDATE: You can read some reaction (and confirmation) of the above here. Features Jeff Jarvis, Jay Rosen, Boing Boing and others. Does not feature any coverage from any Irish newspaper as there has been none.

 

EMI Records (Ireland) and Ors -v- UPC and Ors: Court Report

This matter was returnable today in Court 1 on a Motion for Entry before Mr. Justice Kelly.

The High Court Record Number of this matter is 2012/12381.

Mr. Cian Ferriter SC appeared in the matter for Vodafone and Mr. Gerard Kelly of Matheson Solicitors appeared for UPC and others.

Mr. Jonathan Newman BL appeared for the Plaintiffs.

The Court directed that the matter be returned for the 29th January for directions and any required motions.

The parties are to meet in advance of the 12 January 2013 and correspond by the 14 January 2013.

There was some brief exchange regarding the state of the issues between the parties.

It was indicated to the court that the Plaintiffs were seeking to have more than one website blocked. It was mentioned that the Plaintiffs had a list of 260 websites they had identified as being objectionable.

The Court mentioned that there may be a more detailed review by the Court required, given that the S.I. was being invoked for the first time.

Both parties seemed to indicate that matters would probably be best dispatched by Affidavit.

National Digital Research Centre: Brewster’s Millions with public money?

The National Digital Research Centre (NDRC) is the successor to the now departed MediaLab Europe in Dublin’s Digital Hub.

Like all good corporate entities, it has a mission statement.

“NDRC’s mission is to create market capital by accelerating ideas to income in a sustainable, ongoing and enduring way.”

“Accelerating ideas to income” is what we might otherwise call helping to start a successful company.

The company is a joint venture between Irish Universities and is funded, almost entirely, by a grant from the Department of Communications, Energy and Natural Resources. It has been accepted by the Revenue Commissioners for favourable tax treatment as a charity.

Last year, I wrote about the peculiar assertions regarding the return on investment to date in the Annual Report produced for 2011 by the NDRC.

Previously on the NDRC…

Researching Return on Investment (ROI) at the National Digital Research Centre

National Digital Research Centre responds to my post on ROI 

National Digital Research Centre: Making Investments or “Investments”? 

There were two main questions at issue in those posts. Firstly, there was the cryptic claim made in the 2011 Annual Report that the NDRC had achieved “1.2x return on investment”. And secondly there was the mystery of the shareholdings taken in exchange for the public money invested in all the NDRC’s companies. They appeared not to be referred to at all in the financial records filed with the CRO.

The first question was answered in the 2nd post: Effectively, “1.2x return on investment” didn’t refer to any return to the NDRC on its investment at all.

But there remained the question of why there wasn’t any reference in the financials to the shareholdings the NDRC receive in return for their investments.

Ch-ch-ch-Changes

A few things happened after the publication of my third post exploring this issue. Firstly, the NDRC’s Auditors, Ernst & Young, resigned on the 21st December 2011. Secondly, a new Company Secretary was appointed in May 2012.

PriceWaterhouseCoopers became the new Auditors for the company. This year the NDRC Annual Report for 2012 broke with its predecessors by including financial data and Statements from the Directors and the Auditors.

For the first time, those financials included an valuation of the shares in the companies the NDRC have invested in over the previous 4 years. It explained that valuation as follows;

“Follow-on investment in the shares of companies to commercialise intellectual property generated by an entities research activities is recognised on the balance sheet at cost, less allowance for impairment losses.”

If, like me, you are borderline innumerate, that means they have assessed the shares in the 48 companies in their Portfolio (listed on page 45 of the 2012 Annual Report) as having no value at all.

Zero. Nothing. No value assigned to any of them. They appear nowhere as an asset on the balance sheet with any value at all.

Nothing out of Forty Eight.

Actually, out of Forty Seven. Because there is one company investment which is recorded as an asset. The Annual Report makes quite a big deal about this.

“[There is] one such an enterprise having matured for the first time to the point of being recognised as an asset on the company’s balance sheet. This latter development is a key developmental stage in the progressive maturing of the company’s investment and engagement activities to date.”

An asset! A hit! Send home the blindfolded monkeys! We don’t need their investment skills.

Wait.

What kind of asset are we talking about here?

“During the year, as part of a collaborative translational research investment, the company invested €60,000 in lingleOnline limited, a spinout created for the commercial exploitation of intellectual property developed.”

And what is this investment worth now?

“Investment in unlisted company  €60,000”

OK. So the cash is still there. As we can see, these investment activities really are maturing progressively.

The Brewster’s Millions Investment Model

To be clear, the NDRC has spent 18.5 million euro of public money. It expects, by July of 2013 to have pushed that figure to €25 million. In return for its investments it has taken shares in 48 companies.

The financial statement says the NDRC’s share in one of those companies is currently worth exactly what was paid in. The rest aren’t worth anything at all.

It seems like a bonfire would have been a quicker and easier way to receive the same return on investment.

And yet.

There’s just one more thing.

Because, in a pull out box on page 5 of the 2012 Annual Report, there’s something surprising.

National Digital Research Centre Portfolio Value

“€28.8 m Valuation of Portfolio Companies who secured Follow-On Investment”

If some or all of those 48 companies are collectively worth €28.8 million why aren’t the shares held in those companies listed as assets of NDRC? Not for the first time, I’m mystified.

The NDRC were allotted €25 million from the Department of Communication, Energy and Natural Resources to be drawn down over five years. From the Annual Report, it appears that, as they come to the end of their fifth year, they are eager to continue in existence.

“having proven the success of our model, NDRC is poised and ready to scale.”

When that model is based on spending scarce public money, it is reasonable to expect a financial return on the investment.

Citing the jobs created in the companies is not sufficient to justify the NDRC’s model, if that model is predicated on taking shareholdings as a method of ensuring a return to the taxpayer for their money.

The eponymous hero of Brewster’s Millions provided considerable employment until the money ran out. His task was to spend millions in a set time period and have absolutely no assets to show for it.

It was a good film. It would be a poor use of public funds.

1 … 14 15 16 17 18 19 20 21 22 23 24 … 95