Tuesday, 31 January 2012
Dáil Éireann Debate
Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Sean Sherlock): Let me start by repeating that I fully 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. I intend that this will continue.
In regard to the proposed statutory instrument, it may be useful to explain the background against which the requirement for an amendment to the Copyright and Related Rights Act 2000 has arisen. In the EMI and others v. 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 directives.
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.
I point out that two EU directives, namely, 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. What is an intermediary? In a nutshell, an intermediary is an ISP which provides mere conduit, caching or hosting services on the Internet.
My Department 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.
In regard to the legal advice, the Office of the Attorney General was asked by my Department and that of the Minister, Deputy Bruton, and the Department of Communications, Energy and Natural Resources for its advice as to the implications of the High Court judgment. The office has advised that the obligation contained in the directive is clear and unambiguous. Rightsholders must have a mechanism available to them to apply for an injunction against intermediaries where their intellectual property rights are being breached. Separately the office advised that the prudent course was to introduce a regulation to ensure compliance.
I fully acknowledge that this is a very sensitive issue. We seek to strike a balance between creators and users and intermediaries in regard to online services and businesses, which are of great importance to Ireland’s economy. Considering this, and in the context of the obligations due under the EU directives, discussions took place with the Office of the Attorney General and the legal adviser in our Department in order to frame a draft regulation and put it into the public domain for consultation. The regulation follows the wording of the copyright directive so that we are in compliance and includes a very important proviso that the courts shall have due regard to the rights of any person likely to be affected and this includes, where appropriate, a direction requiring a person to be notified of the application. This latter provision respects the European Convention on Human Rights.
After consultations with the Attorney General’s office and the Department of Communications, Energy and Natural Resources, my Department launched a public consultation on the text of the proposed statutory instrument on 17 June 2011. In addition to liaising with the Department of Communications, Energy and Natural Resources, the consultation document was forwarded to bodies such as the Association of Trademark and Patent Attorneys, BT Communications Ireland Limited, the Consumers Association of Ireland, Digital Rights Ireland, Eircom, EMI Music Ireland Limited, Enterprise Ireland, Google, Hinkson Solicitors, IBEC, the IDA, IMIR, the International Software Federation of Europe, Internet Service Providers Association of Ireland, Irish Copyright Licensing Agency, IRMA, Law Society of Ireland, Microsoft Ireland, O2, UPC, Vodafone and Xtra-vision.
Following the consultation, I had meetings with representatives from many of the above bodies including ISPs, rightsholders and consumers. The consultation attracted over 50 submissions from interested parties. Several of these submissions contained legal arguments in regard to the issue, as well as comments in respect of the draft statutory instrument which was published as part of the consultation process. These comments were forwarded by my Department to the Office of the Attorney General for further consideration.
Following this, and after meetings with interested parties, it is clearly necessary to proceed with the statutory instrument which will restate the law in relation to injunctions against intermediaries which was considered to pertain prior to the judgment. This will make compliance with the copyright directive manifestly clear. The wording of the statutory instrument has been formally drafted and the text was published last Thursday, 26 January.
There is no change of policy being put forward in the proposed legislative measure. It is merely a restatement of the position that was considered to be in place before a High Court judgment of Mr. Justice Charleton in October 2010. I would like people to note the timeline, which was in October 2010. Ireland is obliged to provide that rightsholders 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.
It should also be noted that legal proceedings against the State have been issued by the plaintiffs in the UPC case and damages arising from a successful challenge could be substantial. The European Commission also requested information, on 22 December 2011, on Ireland’s compliance with the copyright directive.
While the copyright directive requires that rights holders must be able to seek an injunction against intermediaries to prevent or terminate an infringement, the Court of Justice of the European Union has held that this must be interpreted in a way which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. EU law has held that copyright is not an absolute right but must be balanced with other rights protected by the European Union Charter of Fundamental Rights — such as the right to freedom of expression and information, data protection, and the right to conduct a business — and that any remedy must be proportionate.
No national authority or court can require an ISP to carry out general monitoring of the information that it transmits on its network. This means an ISP cannot be asked to monitor all the data of each of its customers in order to prevent any future infringement of intellectual property rights. National courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.
As regards relevant case law, I refer to the recent Court of Justice of the European Union, CJEU, case, Scarlet v. Sabam, C-70/10, which enunciated the general principles in relation to the balances required to be taken into account. In this case on 24 November 2011, the CJEU clearly laid out the aforementioned principles that will guide all national courts in future.
In that case, the CJEU also found that requiring an ISP to install a contested filtering system would not be respecting the requirement that a fair balance be struck between the right to intellectual property and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.
I am fully aware that concerns have been expressed that the proposed statutory instrument mirrors the Stop Online Piracy Act in the United States. However, I would point out that these concerns are not based on fact. The most worrying aspects of the US proposals would involve blocking access to websites internationally; taking down entire websites for one infringing item; blocking access to websites by the US state enforcement without notice; targeting companies between the site and end-user, without notice — for example, service providers, search engines, payment network providers and advertising networks; imposing a monitoring of content requirement on Internet companies and, in effect, forcing them to self-censor; extension of criminal liability; the by-passing of safe-harbour provisions in copyright law; lack of due process; disregard for fundamental human rights; and the involvement of government in civil infringement areas, etc.
I would stress that such a regime could not be introduced in the EU, where the safe-harbour provisions are protected in the e-commerce directive and where, in implementing EU law, the European Union Charter of Fundamental Rights must be applied. This includes the right to conduct a business, protection of data, the right to protection of personal data and the freedom to receive or impart information with the right to intellectual property. Critically, any order granted must be proportionate. These matters must be considered when deliberating on the granting of an injunction.
It is of the utmost importance to note that the purpose of the proposed statutory instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU directives that I have already referred to, namely, the copyright directive, 2001 and the enforcement directive, 2004. It should also be noted that such injunctions are available in all other EU member states by virtue of the two directives already referred to. They have been required since at least December 2002 and since that time the Internet has flourished.
In granting such injunctions, the courts must take account of Court of Justice of the European Union judgments. As I have already stated, these judgments require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. The statutory instrument is sufficient because, particularly following the Court of Justice decision in the Scarlet v. Sabam case, the courts have authoritative guidance on the balance to be achieved between, on the one hand, intellectual property rights and, on the other hand, the freedom to conduct a business enjoyed by operators such as Internet service providers, the protection of private data, the right of freedom of expression and information, and proportionality of any remedy.
Acting Chairman (Deputy Joanna Tuffy): I am going to stop the Minister of State there because he is over time. The rest of his speech can be dealt with during questions, if that is agreeable, to be fair to everybody. The time limit of ten minutes was strictly laid down on the Order of Business but the Minister of State has exceeded it.
My Department launched an independent review committee on 9 May 2011, with a view to examining and reviewing the existing Irish copyright and legislative framework. The copyright review committee is an independent body. Its terms of reference are clear and, in general, are concerned with identifying any areas that might be deemed to create barriers to innovation, and to make recommendations to resolve any problems identified.
Following the advice of both the former and current Attorneys General, it is considered necessary that Ireland’s position in ensuring that rightsholders can apply for injunctions against intermediaries whose services are being used to infringe their copyright, must be restated. Otherwise, the State is at risk of actions against it, which would probably result in substantial damages. Nothing the review committee could suggest can change this fact. It is difficult to see what conditions could be attached to the statutory instrument that are not already provided for by EU law, for example, data protection, freedom of expression, information, and freedom to conduct a business. The copyright review committee is expected to publish its first consultation paper shortly following consideration of the submissions received. One of the items for further consideration could be a voluntary forum for all stakeholders, in which various copyright matters could be discussed.
An intermediary is an ISP that provides mere conduit, caching or hosting services on the Internet. As such, an entity such as www.boards.ie, because it avails of the hosting exemption, could be considered an intermediary. However, no injunction may be taken against it provided it abides by the notice and take down procedures as set out in the Copyright and Related Rights Act 2000, to which section 40(4) refers.
In conclusion, in proposing to amend the copyright legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, by introducing the proposed statutory instrument, I 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. It is clear from the rulings of the European court that any remedy applied will have to be proportionate and we can be confident that this approach protects rightsholders by allowing them the access to the courts that we must provide while protecting the fundamental rights of third parties and fellow citizens.
Changes are expected at EU level in several areas affecting e-commerce. For instance, the main objective of the informal competitiveness Council in Copenhagen on 2 and 3 of February 2012 is to reach a common understanding of the most important, concrete actions needed at EU level and in member states to create a well-functioning digital Single Market. It is understood that discussions will be held on the necessity for providing clarification at EU level on the liability of Internet service providers and to provide certainty for those providers when made aware of illegal content on their websites. Among other proposals, a European framework for notice and action procedures will be considered.
Going 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. I thank the Acting Chairman for her indulgence in granting me a few extra minutes.
Deputy Willie O’Dea: I appreciate the Government’s decision to organise a debate on the subject but this is not the way to deal with a subject of this magnitude. We need a more considered debate, along the lines proposed by Deputy Martin, such as a select sub-committee of the Dáil to examine this area of major importance. I am one of the few people who raised this issue in the Dáil on Question Time with the Minister of State. I do not have a vested interest but I was approached by someone who represents copyright owners to find out what was happening and how the Government was going to respond to the EMI case. I thank the Minister of State for the courtesy with which he received my representations. He was very helpful.
The copyright directives of 1980 and 1984 intended that an injunction could be granted against Internet service providers. That was the clear intention and we all assumed it was the law. The matter was tested before the courts and the court took the view that the legislation transposing the directive could not allow for injunctions. Therefore, the directive was not properly transposed into Irish law and Mr. Justice Charleton said that he would have loved to grant an injunction but the drafting of the law did not allow him to do so. It is clear that we are under an obligation to comply with EU directives and to transpose EU directives properly. The Minister of State mentioned damages but this is part of our international obligations. We accepted the EU directive and legislation was passed to transpose it so we must bring it into effect. Every other country in Europe has brought it into effect properly. The Minister of State referred to European law and the Sabam case, the principles of which will be relied upon in the courts when deciding on how to implement this.
In a fast evolving situation such as this, there is an argument that it is preferable for judicial discretion and judicial law-making to deal with this situation. However, in a matter of this importance, the fundamental principles should be laid down by the Irish Parliament. The Minister of State said recently that it was not the Government’s intention that Internet sites be closed down but if that is not his intention, why not put his intention in legislative form? That is the least required. We are abdicating responsibility to the Judiciary. While I have confidence in judges, I do not know the extent to which they will be persuaded by the principles of European law. I am familiar with the terms of the e-commerce directive but this is a matter for Parliament, not the Judiciary. We should set down the broad principles in this House. We all deplore piracy and we recognise the rights of copyright owners, which must be balanced against the right to freedom of expression, the right to privacy of end users and the absolute necessity for this country to have a robust and trading Internet. The representatives of the people in Parliament should be deciding this, not the Judiciary.
There is a bigger picture and perhaps it is time to revisit the EU directive, which is more than ten years old. The situation has evolved considerably in the meantime. In the United States, piracy has reduced substantially because there are 800 systems through which this material can be legally distributed on payment of a modest fee. The precedent for that in this country is the agreement between Eircom and IRMA, which led to MusicHub, where people can download music on payment of a modest fee. The empirical evidence shows that if such a system is in place, people will opt for the legal system. There will always be some people who opt for the illegal system. That is the direction in which we should move.
Deputy Martin Ferris: This issue led to a huge public reaction. A huge number of e-mails opposed the intention of the Minister of State to sign the order and organisers of an online petition said they have collected over 80,000 signatures. I spoke to the Minister of State last week. The raising of the issue by Members has led to this time being set aside to debate the issue, which I welcome. This debate will be meaningless if the Minister of State signs the order anyway. If there is to be genuine debate, the Minister of State should suspend the order, publish primary draft legislation and proceed in the normal way through the Oireachtas. That would require a more comprehensive measure and would allow for genuine debate and input from interested parties. It would provide the opportunity to ensure that any legislation, ostensibly to protect the rights of copyright holders, would not threaten access and freedom of information at the same time.
I also remind the Minister of State that the programme for Government undertook not to continue with the unhealthy practices of incorporating EU directives into domestic law unless as part of primary legislation. I suggest in light of the huge reaction to this and the implications it might have, this represents a good opportunity to put that promise into effect. The absence of democratic scrutiny on this measure has been highlighted by critics, as has the fact that the statutory instrument, as drafted, gives too much interpretive powers to the courts.
One of the main reasons for the order is Mr. Justice Charleton’s order in the case brought by EMI. Allied to that was the apparent threat by other copyright interests to take action against the State. Is it the case that the Government would rather issue a diktat to placate the major music companies than deal with this issue in a legislative matter which would take into account a broader range of interests and fundamental freedoms enshrined in the Constitution and European rights?
I particularly stress the dangers of not simply translating court judgments into legislation, given that in a previous case involving Internet access Mr. Justice Charleton admitted he made a mistake. The case involved was brought by EMI which forced Eircom to block access to a site called Pirate Bay. Mr. Justice Charleton granted the order but later admitted he had been mistaken in doing so in the absence of any notice to the request for information from the party affected, Pirate Bay.
The implication of the statutory instrument which the Minister proposes to sign and of the ACTA legislation which will come before the European Parliament in a few months is even more serious. Those who are knowledgeable about the area, including many who are part of what is a relatively thriving sector of the economy, believe if the trend towards restricting access on the Internet is successful much of its value would be lost. It will also threaten a significant number of jobs in the State.
While intellectual property rights need to be protected, measures framed at the behest of, or to reflect court decisions in favour of large music companies, for example, are not the correct way to proceed. It has also been pointed out by people with expertise in this area that the decision of the European Court of Justice in a recent case has not been taken into account in drafting the statutory instrument. The court referred to a number of tests it said needed to be applied before an injunction could be granted against a site.
While there are people who profit from pirating music and film, most of what is uploaded onto the Internet is done on an individual basis. It has become a huge area and one in which those with expertise rarely threaten the rights of individual musicians or other artists. There must be some way of tackling large-scale commercial piracy without restricting the sort of information and other sharing that is such a major part of the use of the Internet. I would therefore call on the Minister of State to withdraw the proposed statutory instrument and put his proposal in draft legislation that can be properly debated and decided upon in the House.
Deputy Stephen S. Donnelly: I would like to start by saying I fully support the protection of copyrighted material. I thank the Minister of State for pausing in signing the legislation in order to allow for this debate. I accept legislation is required to comply with the recent High Court decision and EU directives in this area.
There are three reasons why additional clauses need to be added to the statutory instrument. The first is that the principle of targeting intermediaries is a fundamentally flawed approach. The second is that the statutory instrument will not have the desired effect. The third is that while it will not have the desired effect, it could have several undesired and unintended effects and consequences.
In terms of the principle of targeting intermediaries rather than the perpetrator, I will outline how this works. If someone posts a YouTube video link on Facebook the law, at its extreme, could allow an injunction which would force the ISP to block access to Facebook for Irish users. It would be like forcing National Toll Roads to shut down entire stretches of motorway in order to avoid speeding because it cannot find people who are doing it. The EU implemented the intermediary rather than the perpetrator approach several years ago. However, it has since said it was the wrong approach and is actively considering ways to develop a new approach. I have several quotes from very relevant people which I can supply the Minister of State with. It accepts it was not the correct approach.
In terms of the approach not having the desired effect, the real objective is to stop large-scale providers of pirated material being able to supply it in a readily available manner online. We all know there are very negative consequences if that happens. The technical experts I have spoken to have said the providers of the sort of material, like BitTorrent, can get around court injunctions in about five minutes. One expert said it is beyond laughable to suggest that this will do more than amuse the pirates. Ofcom, the UK regulator, said for all blocking methods circumvention by site operators and Internet users is technically possible and relatively straightforward. We also know other countries which have implemented this have seen a temporary dip in piracy traffic but it then increased again.
There are three unintended consequences, to which I will return in the question and answer session. Many online companies are afraid they will have to be shut down. Ireland’s reputation as a smart economy could be damaged and Internet access and freedoms in Ireland could be greatly curtailed.
Deputy Catherine Murphy: I thank the Minister of State and Government for providing time for this very important debate. Deputy Donnelly outlined some of the main issues and objections many people who have approached us have concerns about. I raised some of the same issues last Thursday during a Topical Issues debate.
Tens of thousands of people have been mobilised on this matter. The Internet Service Providers Association of Ireland voiced its concern about the vague wording and stated the Charter of Fundamental Rights must be respected for both users and service providers. Its members include Google, Eircom and UPC. It is worth restating — Deputy Donnelly already made the point — that neither he nor I object to the proper exercise of EU copyright law in this country. We understand the obligations on the Minister of State to vindicate that law. I appreciate he has been put in a difficult place.
It is in that spirit that we made an alternative proposal which we delivered to his office earlier today. We were trying to strike a fairer balance. I would like to thank T. J. McIntyre and Simon McGarr for their expertise and assistance in this regard. Crucially, the alternative wording lays out a number of specific considerations that must be taken into account by any judge setting down some boundaries when deciding the grounds upon which an injunction might be granted under the Act.
Specific freedoms, such as those listed in the Scarlet v. Sabam decision in the European Court of Justice, to which the Minister of State referred, include the freedom to conduct business, the right to protection of personal data and the right to receive or impart information. The wording also lays out specific recourse to the Data Protection Commissioner by requiring the court to notify it if it considers that the right to the protection of personal data may be affected by the granting of an injunction.
In respect of costs, the burden which may be placed upon an intermediary against whom any junction may be sought should by rights be borne by the applicant and the text reflects that. We need to recognise that primary legislation is the most appropriate way to make these regulations. We propose a sunset clause which would expire in two years’ time. The copyright review committee, to which the Minister of State referred, chaired by Dr. Eoin O’Dell, is expected to complete its work in the summer. It would be an ideal opportunity to commence work on primary legislation.
We offer this remedy in the spirit of trying to show a balanced approach to applying EU copyright law in Ireland and also reassuring Internet users, providers, website owners and online businesses that they have nothing to worry about if they use the Internet fairly and honestly. I hope the Minister of State would be in a position to take some of our proposals on board. We want to try to resolve the problem.
Acting Chairman (Deputy Joanna Tuffy): We will now proceed to questions. They are to be taken in the order in which Members indicated their desire to contribute. I ask Members not to make speeches and to ask a maximum of two questions at a time, after which the Minister of State will respond.
Deputy Liam Twomey: I commend the Minister of State on what he is doing because we are trying to address a very difficult issue. Could this instrument have a significant effect on an ISP? ISPs are vital to our future. How might the statutory instrument have an impact on businesses? Will the Minister of State comment on whether a company could use the cost of an injunction to bully an ISP into an action that may not be helpful or expected? From what the Minister of State said, it seems we comply with EU law, yet the courts seem to disagree with what we have on our Statute Book. Will the Minister of State answer these questions to clarify matters?
It should be made crystal clear to every Member that this provision is nothing like the Stop Online Piracy Act in the United States, which is a far more draconian provision. Our measure is trying to achieve the balance the Minister of State is talking about. We must raise these specific issues, which are so important to businesses.
Deputy Sean Sherlock: As I outlined in my speech, one must have regard to proportionality. The Sabam ruling is such that if somebody were to seek an injunction before a judge, the latter would have to establish that infringement occurred in the first instance. In making such a decision, a judge must have regard to the basic rights that exist. Members articulated the circumstances that arise in this regard with reference to the EU charter of fundamental rights and the rights in the copyright directive. A judge would have to have regard to the facts that there is a copyright holder and that there is an individual ISP, a business, with the right to conduct its business, as is inherent in the EU copyright directive. In other words, the right of the copyright holder is not superior to that of the individual citizen or business.
With regard to seeking an injunction and measuring costs, there is no way of determining the actual cost, even though individuals have come forward with proposals on the cost of a High Court injunction. I would have faith in the fact that the Irish judicial system would have to have regard to the fact that there are specific rights regarding monitoring, especially in light of the Sabam ruling.
On the effect on an ISP, one must ask what is an intermediary. I have outlined this in my speech and will probably not repeat it. It is question of proportionality. If a person is accessing a site such as www.youtube.com and is not acting legally, a court would have to have regard to the need for proportionality. Why would an Irish court shut down an Irish website, potentially with millions of users, because of the actions of one person? One could argue it would be an infringement of the right of the business person to conduct his business. The issue of proportionality, therefore, must come into play. There are certain fundamental rights that must be adhered to. Before an injunction is sought, a judge in Ireland would have to have complete regard for those rights. I hope that answers the question.
Deputy Richard Boyd Barrett: The Acting Chairman stated we can only ask questions. Since it was agreed that slightly more time would be allowed because this issue is somewhat complex, would it not be reasonable for me to make just a few short points?
Deputy Richard Boyd Barrett: This is a complex issue and it has many aspects, not all of which I understand fully. However, I have been acquainting myself with them over the past week or two. The issue is one in respect of which there is strong feeling. It has considerable economic implications in that rash moves in this area could do reputational damage to Ireland as a hub for IT and new technologies.
The Minister of State may inform me on the process. I learned only in the past year what a statutory instrument is. It is a ministerial order that does not require the normal legislative process, parliamentary scrutiny and debate. Those watching this debate need to know that also. Is there a reason, given the concerns that have been raised quite widely in Ireland, and which are causing uproar in countries such as Germany and the United States, we could not stop bringing this order into force and go through the longer process involving proper legislation, such that all sides would have an opportunity to make submissions and examine the issues fully?
It is very complicated. I have not made my decision but, as I understand it, it is not clear that we are in breach. The European Commission has not said we are in breach and a recent ruling in the European Court of Justice stated the use of blocking had to be limited, precisely because it infringed on freedom of expression and could target lawful communications unfairly. It would hit intermediaries, as others have said. It would send out a very good signal if the Government did not just push this instrument through by order and allowed for a fuller debate and submissions from all sides so we could be ahead of the curve on an issue that has not been resolved, even at European level. Let us lead the way and have a proper, informed debate and try to balance, in a fair way, all the various competing concerns of artists, musicians and holders of copyright with the importance of upholding Internet freedom and freedom of expression.
Deputy Sean Sherlock: I take the Deputy’s points. I do not believe reputational damage will arise from this. It is a statutory instrument. We must ask its purpose. We must bear in mind Mr. Justice Charleton’s judgment in the case of EMI and others v. UPC. Advice received from the Attorney General under the last and current mandates stated that, in order to remove any doubt as to the right of the copyright holder to seek an injunction, the best approach would be to amend existing legislation. In this statutory instrument, all we are doing is amending existing legislation, namely the Copyright Act. Having regard to the Charleton ruling, we are putting ourselves in a position in which there will be no doubt as to whether we will be compliant with EU law.
Deputy Sean Sherlock: No. I draw attention to the circumstances that would obtain if we were not a party to the EMI and others v. UPC case. It could be stated that, under the Copyright Act 2000, the right to seek an injunction over an infringement already existed. We are merely restating that position.
The reason for much of the controversy on this stems from the fact that this issue has been arising for well over a year, bearing in mind the Charleton judgment was in 2010. The new Government instigated a review and engaged in consultation. People are accusing us of not consulting but we had a consultation period. I made it clear to people that I was open to discussions with all stakeholders on this issue. As late as last Thursday, I met the Irish Internet Association and had further discussions with it.
We are not trying to impose something. If we were to legislate from a primary perspective in regard to the Internet, we would have to be very careful about how we would do that given there are so many disparate communities within the web space as well as the copyright holders. My preferred option, given the EU is now looking at the copyright or e-commerce directive, is that the community would start talking across the various and disparate groupings, such as the hosters, the ISPs, the software developers, the copyright holders and so on. It is important that this community starts to consult with the various stakeholders within the community to begin the process of coming up with a strategic view as to how we can either legislate primarily or put in place voluntary agreements.
My preferred option is for voluntary agreements because assuming all stakeholders come to the table honestly and openly, this ensures that if primary legislation is implemented it does not become outmoded or outdated as soon as it is enacted by virtue of further innovations within the web. What we are doing here is merely restating a position which we hold to have already existed, namely, upholding the right of the copyright holder while having regard to the balance of rights in that respect.
I do not believe primary legislation is required at this stage. The Technical Group has put forward a proposal for a statutory instrument. If time allows and bearing in mind there are more questions to follow, I would like to answer the individual points the Technical Group has made given it has put forward an honest and open solution to this issue. While I have only had a brief few hours to analyse it, since it was submitted today at 12.45 p.m., there are some issues within it which I would like to address because I consider it an honest effort to address the issues at hand.
Deputy Eoghan Murphy: It is important to note the Minister of State has consulted extensively on this issue. He continued to do so when concerns were raised, and we have this debate today as a result. Deputy Boyd Barrett is correct that this is a complicated issue and it is difficult to know just how big a deal it is or whether to believe the hype. A number of small tech firms have come to me with concerns about it and, at the same time, I have spoken to larger organisations which are not that concerned. It is important to note that Facebook recently decided it was going to expand its operations here, and it would surely have considered this before it decided that.
A question has been floating around on the Internet, in e-mails and on some of the boards about the kind of open-ended powers this would give the courts to step in and make certain judgments or findings against ISPs or individuals, and about the rights on the part of users or website owners to defend themselves before, say, their site was blocked. There is some concern that this is not concrete in the statutory instrument so that it might be found a ruling could set a precedent which could have unforeseen implications down the line.
Deputy Willie O’Dea: Did I understand the Minister of State to say the EU is revisiting the copyright directive? I hope so, because it should be, although I do not know how long this will take to resolve if that is the case.
Is it the intention of the Minister of State to proceed immediately to sign the statutory instrument in the absence of any guidance to the courts as to how they will exercise their powers to grant injunctions? For example, the Minister of State said he is confident the courts will act in accordance with the principle of proportionality and that he does not think the courts will block websites. Why not write that down? Why not put it in the form of legislation? This is the Irish Parliament. Ireland is the only country that will be affected if there is undue disruption of the Internet because of the way the judges interpret the scope of the powers we are now giving them. Why not restrict those powers? At the same time as making it explicit that judges can grant injunctions, why not simply write it in the rules which will govern the granting of those injunctions?
Deputy Sean Sherlock: On Deputy Eoghan Murphy’s point, Ireland has the concept of the take-down notice. I use www.boards.ie and there are other examples with which we are all familiar, such as YouTube. If a person becomes a member of www.boards.ie, the presumption is that the person has signed up to a set of behavioural protocols by which he or she will abide, and will not say anything defamatory or do anything that is in breach of copyright, as an individual user. If the person does that, there is a mechanism so that, through its own monitoring mechanisms, www.boards.ie can expel an errant user or somebody who is, if I may use the term, acting the maggot. Therefore, this already exists as a voluntary code dealing with behaviour.
If, however, we begin legislating in a proscriptive way for every single behaviour on the Internet, we will be going down a very narrow funnel. As I have stated and to answer Deputy O’Dea’s question, the informal competitiveness council is to try to come up with a set of actions in regard to the issues we are talking about, which is the correct approach. However, the reason we have had to implement the statutory instrument, as the Deputy will appreciate given he was a member of the last Government, is that this has been ongoing for a considerable period and the State is potentially exposed to being sued by various entities. I must have regard to the fact it is taxpayers’ money which is potentially in question.
The point is that I do not believe an Irish judge, if he or she is having regard to the e-commerce directive, will not also have regard to the Charter of Fundamental Rights, which has come into operation and is the legal entity, and also the Sabam ruling. I do not believe any Irish judge would not adhere to the principles of proportionality in this sense.
To go back to the point about take-down notices, if a hoster decides it is not going to take down the content following a take-down notice on the assumption that this take-down notice is on foot of a real breach of copyright, perhaps it is then open for the person against whom the infringement occurs to seek the injunction. What we want to do is to get into a space in this country where the system operates on a voluntary basis, with clear protocols. To be fair, the music industry needs to adopt new models and needs to begin to get its music on to more platforms, as noted by Deputy O’Dea, and needs to begin finding new mechanisms for selling its music. Already, Netflix is coming on stream, which will also give rise to issues. The more content that is legally available through a multitude of mechanisms, the less likely it is we will encounter copyright theft and piracy issues.
Deputy Martin Ferris: Does the Minister of State agree that this order can be used by companies to secure the sort of site injunctions which the European Court itself has ruled unlawful? Does it not also open opportunities for large corporations to close down sites through injunctions against smaller, weaker companies that would not find themselves in a position to defend themselves because of the costs involved? Does it not open that can of worms in regard to the large corporations?
Deputy Derek Keating: I am sure the Minister of State will remember that I raised this issue last week in the topical issue debate. I wish to come at it from a slightly different angle, given the contributions in the extended debate today. Given the enormous concerns throughout the nation, the confusion and, in certain cases, the great misunderstanding, might the Minister of State’s Department help to allay people’s fears? The Minister of State might take the unusual step, for a Minister, of taking out an advertisement in some branch of the media as an opportunity to allay people’s concerns, of which there are volumes, as well as the considerable amount of misunderstanding and misinformation I have come across recently. This is not helpful.
Deputy Sean Sherlock: I refer to Deputy Ferris’s point. People are interpreting this as us doing the bidding of the large corporations. This is not the stop on-line piracy act, SOPA. We are not extending massive powers of intervention so that we can step into the breach to try to protect one side over another. This is not SOPA legislation. This is balancing the right of a copyright holder against the right of an individual.
There are inherent rights in the charter of fundamental rights and in the e-commerce directive which give rights to the individual company to conduct its business. We must also have regard to the rights of the copyright holder, which could be a small publishing house. People perceive the copyright holder to be “big music” but it could be a small Internet publishing business, a person creating his or her own music at home. They have copyright and certain protections. I do not believe this measure will be used by big business as a tool to beat down websites. Google is one of the biggest corporations in the world and it has a right to do business here if it has an Irish or European Union domain. Those rights are protected but are not subservient to the right of the copyright holder.
I take the Deputy up on a point he made about the statutory instrument. He is infinitely more experienced than I am, as a legislator, and he will appreciate that this is not new policy and therefore a statutory instrument can apply. We are not at odds with the programme for Government in this because we are only amending legislation. I reply respectfully to the Deputy in that regard.
This is a balancing between the two. The small guy or girl who begins with the gaming industry has certain rights as copyright holders and we must protect them as much as we must protect the citizen’s right to access the Internet. Proportionality is the key to this debate.
Deputy Catherine Murphy: The Minister of State claims this is a restatement of policy rather than a new policy position. If this is the case why would the courts interpret it in any other way? It is clearly a change in policy — it must be.
Our point is that there is a lack of grounded policy in respect of copyright law as it relates to the Internet. What we propose in our alternative wording is that in the meantime, until we get to the point of having good grounded legislation, certain boundaries should be set. These would be such that the Data Protection Commissioner would require the court to notify the commissioner’s office if it considers that the right to protection of personal data would be affected by the granting of an injunction. That was one of the points we made in our document. A second point was that the statutory instrument should state very clearly the case concerning freedom, for example, in regard to the Scarlet v. Sabam case. People could then see what the statutory instrument contains and that would give some protection. In addition, it is not unreasonable to include a sunset clause in regard to when the primary legislation might be enacted.
The Minister of State mentioned the small guy. This measure could ruin, not the big people, but those on the way up, the intermediate people. If this were to go badly wrong it could ruin a person’s prospects, for example, if there was a court injunction to which he or she had to contribute some or all of the costs.
Consider the Digital Hub where last year there were in the order of 18 new companies. As we all know, this is one of our bright spots, as is the artistic community. It is a question of finding the right balance. That small guy could be badly burned if the issue of awarding costs is not addressed. It is a potential David and Goliath situation. On one hand there is the big music industry, on the other a small intermediate person.
Those were the four principal points we stated in our draft statutory instrument. I would appreciate if the Minister of State were to return on those points and, in addition, let us know if there will be scope to reconsider this issue with a view to making changes before the measure is signed. We need to know the Minister of State’s view on this, one way or another.
Deputy Jerry Buttimer: I do not envy the Minister of State his task. I have never seen so many e-mails coming in. We must differentiate between the keyboard warriors who, in some cases, border on anarchism and those who are genuinely creative and passionate about this. That is important for those who are creative or into gaming. The Minister knows well we are trying to be the hub for gaming in the western world and it is important.
I have some simple and basic questions. What are the implications for the protection of individual freedom? Can the Minister of State reassure the House that the ISPs will not track and demonise the ordinary citizen who is not involved in the copyright cartel, nor out to make anything from this? I am reassured by his remarks in regard to the balancing act. However, some people I have been talking to and liaising with, who have given me their real names and engaged with me in a proper manner, have expressed worry that this statutory instrument is vague, perhaps leaving the courts with too much of a margin for discretion. Is it the case that we are jumping through hoops for big business, which I accept also has rights, at the expense of the small person?
The Minister of State’s opening speech to the House was welcome. I join Deputy Keating who said we should tell this story better. I compliment the Minister of State. He has been available, has met and spoken to, not only Members, but other people in the House and in the wider community. The last thing we need is to lose the culture of creativity and innovation, to which the Minister of State referred. I know that is not his modus operandi. However, it is important that we allay fears.
Deputy Sean Sherlock: At this point, I will address the points submitted by the Technical Group in regard to the statutory instrument. I will briefly give my analysis of them. There is not a great deal of difference between the two statutory instruments. I respect the point made. We are not setting out a new policy framework but clarifying legislation through an amendment to the copyright Act. We are going back to the position prior to the EMI v. UPC case where the right to seek an injunction by a copyright holder was there.
I note the Technical Group’s alternative clauses propose the statutory instrument be of two-year duration. We have to monitor events, however, in the intervening two years and move quickly if essential balances are not maintained. That would be impeded by a two-year clause.
On the Technical Group’s paragraph c, my proposed statutory instrument already includes a provision that the courts will have due regard to the rights of any person affected by virtue of the grant of any such injunction and the court will give such direction, including where appropriate a direction requiring a person to be notified of the application. This covers the Technical Group’s point and to our mind it would be the action of a prudent judge.
On paragraph d, the remedy of damages will not be available against an intermediary provided it abides by the e-commerce directive. Again, the e-commerce directive has certain rights which protect the business. Given the wide variety of circumstances that may prevail, it is felt the best approach is to have the matter dealt with case by case through a judicial process which must balance all the rights involved. Protections are already in place under European law. The European Court of Justice requires all remedies must be proportionate while the right to freedom of expression and to conduct a business must be balanced with the right to intellectual property in considering the granting of an injunction. The Charter of Fundamental Rights provides in law for the protection of personal data, freedom of expression and information, freedom to conduct a business, the right to property and consumer protection.
On paragraph e, one cannot predict future circumstances. That is why we again feel the best approach is to deal with the matter case by case through the judicial process. Many rights are involved in this paragraph such as the right to copyright and to intellectual property in general. The first matter to be considered is to establish if there is an infringement. If lawful content is also included, the right of making available by the owner of the lawful content has to be considered. The rights of the citizen, consumer and end-user in freedom of expression and freedom to receive or impart information must also be taken into account. The right to data protection must come into the mix on the point made by the Technical Group. The right of the Internet service provider, ISP, to conduct a business and all that it entails must also be upheld.
On paragraphs f and g of the Technical Group’s submission concerning injunctions, these matters are already within the discretion of the court. EU law has held any measures must be fair and proportionate and not excessively costly. Yet again, given the varying circumstances that could arise, we feel a case-by-case analysis and the balancing of rights and consideration of all matters by judicial process is the proper forum for such decisions.
On Deputy Keating’s point about publicising this, I want to reiterate we had an open consultation on it. I stated on the record I was available to meet anybody. I have sent out three communications to all Deputies, across all parties, and Senators on this issue so far. I have engaged with the media in as open a fashion as possible. I am willing to talk to people and am making myself available to the Internet community to talk to it on this.
On Deputy Buttimer’s point about the implications of this amendment, I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder. The ISPs, as I outlined earlier, are the mere conduit, the mechanism through which information flows. They act responsibly, as do individual websites, and in the majority of cases do not overtly seek to facilitate copyright theft. A solution to the problem might be voluntary agreements in place between copyright holders and individual ISPs, hosters and caching companies.
I do not believe we are doing the bidding of big business because there are as many — a multitude of — small Irish copyright holders on this island who have the right to certain protections which are not superior to the other rights I have outlined prior to this.
Deputy Stephen S. Donnelly: I thank the Minister of State for addressing the various clauses in the statutory instrument. I want to focus on three issues in response, the first of which is cost. The Minister of State stated repeatedly the protections exist in European law. There is a sense this statutory instrument is somewhat vague but the Minister of State has stressed judges will look to European law. He gave the example of www.boards.ie, which employs two people full time on take-down notices and takes this stuff very seriously. The view of the team of www.boards.ie is this will force legal costs upon them which will probably force them to shut down. It is the biggest online community in Ireland, with over 2 million unique Irish users. Every time they have to go to court they believe it will cost them about €35,000. They can do that a very small number of times and most of their smaller equivalents cannot do that at all.
Our proposed additional clauses to the statutory instrument would bring the European protections into Irish law. Rather than a judge ruling on the basis of Irish law, and www.boards.ie possibly being informed an injunction had been taken and some ISPs were blocking access to www.boards.ie, and www.boards.ie having to spend upwards of €35,000 getting a new ruling citing European law, through the clauses in the statutory instrument we are bringing that into Irish law. Therefore, by the Minister’s own logic, nothing has changed in terms of the additional clauses we have added, but they would give an awful lot of comfort to the people to whom we have spoken.
The Internet Service Providers Association of Ireland, a reputable group which includes Google, said the wording of the statutory instrument as published was “vague and overly broad. It creates further business uncertainty for those running or considering establishing Internet services in Ireland”. That is a fairly strong position.
We accept the Minister of State is not doing the bidding of big business. However, it is interesting to note the owners of copyright have stated publically they are very happy with the proposed statutory instrument while the intermediaries have stated publically they are deeply unhappy, and the largest Irish online community has stated that this will force it out of business.
In terms of finding balance, if one side is delighted with it and the other side is horrified by it, and they are all legitimate, it suggests the current statutory instrument does not have that balance. We have added the additional clauses to strike that balance. I encourage the Minister to examine them and commit to the House this evening that he will give a detailed response and provide time and a timeframe to debate the clauses for the reasons I have laid out.
Deputy Brendan Griffin: Like many Deputies, I have received thousands of e-mails on this proposed amendment to the copyright Act. Will the Minister of State give an assurance that foreign direct investment will not be frightened away as a result of this statutory instrument? That has been the most striking of the concerns raised with me. Further to Deputy Donnelly’s comments, www.boards.ie described the implications of this law as akin to Bank of Ireland taking proceedings against National Toll Roads because the bank robber used the M50 as a getaway route. I understand why people are concerned and perhaps the Minister of State can address that issue. What notification will be given to people who are suspected of being in breach of the law?
Deputy Willie O’Dea: The Minister of State assured us that the statutory instrument only clarifies the existing law and does not represent a change of policy. I accept his assurance but we have to bear in mind that the existing law, the Copyright and Related Rights Act 2000, was passed 12 years ago. The Internet has changed enormously in the intervening period. As far as I am aware, the only application for an injunction under the 2000 Act was the EMI case. We are now making it clear that people can apply for an injunction against an Internet service provider.
I agree with those who argue that the provisions of the statutory instrument are too vague. We should not rely on the European Court of Justice, which may change its mind in years to come, or the Irish courts’ interpretation of European judgments and the e-commerce directive. As the Parliament of this country, we should be setting out clear guiding principles for the courts through primary legislation along the lines proposed by the Technical Group.
Minister of State at the Department of Jobs, Enterprise and Innovation (Deputy Sean Sherlock): I thank Deputies for a considered and thoughtful debate. Our key belief is that we cannot trample on the rights of individual citizens or businesses. We are trying to uphold that belief and all we are doing with this amending legislation is ensuring we are on the right side of EU law. Copyright is a principle to which this State adheres but I reiterate it is not a superior right for the purposes of this statutory instrument.
I disagree with Deputy Donnelly’s contention. The mechanism by which www.boards.ie operates is such that if members do anything untoward, a take down notice can be issued to the website. I am sure www.boards.ie complies with take down notices where illegal activities or defamatory comments are suspected. Why would that threaten its core business?
Deputy Sean Sherlock: I listened to the Deputy. People speak about the cost of defence. Just because one applies for an injunction, the judge will not necessarily grant it. We must have regard for the rights of individual companies to conduct their business and for citizens to express themselves freely. Nobody is trampling on those rights. This statutory instrument restates a position which we already held prior to the Charleton judgment.
It is important that all the stakeholders sit down with each other to chart a strategy on how this space will operate in the future. In the context of the disparate nature of the users and businesses that operate in this space, it is incumbent on us to chart a way forward. I would be delighted to make myself available to facilitate that process. As recently as this morning, there was engagement with the Internet community through the Irish Internet Association as one of the stakeholders. We are open to that discussion.
Deputy Sean Sherlock: In regard to signing the statutory instrument, I have addressed the issues raised by the Technical Group. I have already stated that it is our intention to proceed with the statutory instrument. The State has been exposed on this issue, which has been ongoing since November 2010, and what we are doing is a proportionate response. We will not infringe on anybody’s right to conduct a business or to free expression through the Internet.
Deputy Jerry Buttimer: I ask the Minister of State to reassure us that the rights and freedoms of individuals will be protected. I received a significant number of e-mails from people who are genuinely committed to and passionate about this subject. It is important that we do not curb personal freedoms.
Deputy Sean Sherlock: In regard to the alternative statutory instrument proposed by T.J. McIntyre, I have debated the issue with him in public media and I am not averse to engaging with the digital rights community with a view to hammering out a strategy. However, we have to implement the statutory implement and we are doing so on foot of advice from two Attorneys General. I have to take account of the sound advice given by an Attorney General. This legislative measure is being introduced on foot of the legal advice my Department has obtained. The Office of the Attorney General was asked by my Department and the Department of Communications, Energy and Natural Resources for advice on the implications of the High Court judgment and it has advised that the obligation set out in the directive is clear and unambiguous. Rights holders must be given a mechanism to apply for an injunction against intermediaries where their intellectual property rights are being breached. The Attorney General’s office advised separately that the prudent course was to introduce a regulation to ensure compliance. That is merely what we are doing.
Deputy Sean Sherlock: I thank all who contributed to this debate and reassure citizens that this State and successive governments have invested heavily in new technologies related to the web and communications.
Deputy Sean Sherlock: With all due respect to the Members opposite, I have taken on board the points they have made and addressed them individually. I respectfully suggest they should defer to their legal advisers. I will also defer to their legal advisers on this so that we can have a strategic conversation about how the future of the web operates in the State, but we are not changing the wording of the statutory instrument.
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