Irish copyright regulations unnecessary

Senior Counsel John Gordon has a clear explanation as to why Sean Sherlock's proposed copyright regulations are unnecessary in today's Sunday Business Post. I've taken the liberty of reproducing the entire piece here:

Simplistic Internet regulations court trouble

Amendments to copyright law for online infringements should be dealt with through primary legislation, writes John Gordon

There has been much debate in recent weeks about a draft statutory instrument (SI) that minister of state Sean Sherlock is about to bring into Irish law to deal with online copyright infringement. The SI is intended to fulfil Ireland's EU obligations by facilitating in­junctions against internet ser­vice providers (ISPs). This follows the decision of Justice Charleton in 2010 in the unsuc­cessful action taken by Irish recording companies, EMI, Sony, Universal, Warner and Wea against UPC, in which I appeared on behalf of the de­fendant.

These recording companies last month issued proceedings against the state on the basis that it is liable to pay compen­sation for its failure to provide them with a remedy to fight on­line copyright infringement. This raises the question of how the state has failed in its obliga­tions.

In Minister Sherlock's press release on January 26, accom­panying a draft of the proposed SI, it was stated that the obliga­tions contained in the relevant directive were clear.

Article 8(3) of the directive on the harmonisation of cer­tain aspects of copyright and related rights in the informa­tion society, (2001/29/EC), which is referred to in the draft SI, provides that member states shall ensure copyright owners are in a position to apply for in­junctions against intermedi­aries whose services are used by others to infringe copyright. The directive states that the conditions and modalities for such injunctions are at the dis­cretion of member states.

Having taken into account these provisions, the state did in fact legislate to provide a re­medy to rightsholders in re­spect of copyright infringements under the notify and takedown provisions of Section 40(4) of the Copyright and Related Rights Act 2000. In addition, rightsholders have been granted Norwich Pharmacal Orders under the common law, which obliges an ISP to identify subscribers who are shown to have infringed copyright on the ISPs network so the rightsholders can pursue such infringers directly. Such relief has historically been ob­tained by the recording com­panies that are now suing the state.

However, they consider it too expensive and ineffective. So what is now being sought is not the right to a remedy but an additional remedy under Irish law. There is no clear and un­ambiguous obligation on the state to implement this SI.

In the UPC case the reliefs sought included the possible implementation by ISPs of fil­tering and blocking technology on their network, and of a graduated response system, whereby after three warnings a person's internet subscrip­tion is suspended or termi­nated and/or the blocking of subscriber access by ISPs to certain websites alleged to fa­cilitate copyright infringe­ment.

A recent decision of the Court of Justice of the EU (Case C-70/10 SABAM) has confirmed, since the UPC case, that it is unlawful under EU law for an ISP to be or­dered to implement blocking and filtering technology on its network to seek out copyright infringements.

In addition, Eircom's imple­mentation of the graduated re­sponse, or three strikes, system, which is the subject of specific legislation in certain member states, is currently being challenged by the Data Protection Commissioner be­fore the Irish Courts.

Given the progress of legis­lative and judicial thought in the EU, it is now even more clear that the type of remedy which rightsholders seem to expect as a result of the proposed SI will not be available to them.

As a result, the state cannot be liable to pay compensation for failing to provide these re­medies under Irish law. The generality of the lan­guage in the proposed SI can only lead to confusion as to the precise remedies that can lawfully be obtained in the light of other express provisions of EU law. Such EU law is intended to cut down on the scope of the remedies available against ISPs.

Judges will have to approach any new legislation by refer­ence to EU law and jurispru­dence, which must take precedence over Irish domestic law where there is any incon­sistency between the two.

If this whole debate is a mat­ter of empowering the Irish courts to order the blocking of websites, as many commenta­tors have stated in recent weeks and months, then the legisla­tion should specifically address this and set out the relevant cri­teria in a manner consistent with EU law. The proposed SI introduces unwelcome uncer­tainty and will inevitably lead to further litigation.

Further, it is noteworthy that the Programme for Govern­ment stated that legislation in the area of online copyright infringement needed to be tackled — but went on to say that "the situation can no long­er be tolerated where Irish min­isters enact EU legislation by statutory instrument", where "the checks and balances of parliamentary democracy are bypassed". The proposed SI ignores this statement, in that it seeks, without the benefit of the normal legislative process, to amend the Copyright and Related Rights Act 2000, which itself was the subject of lengthy debate in both houses of the Oireachtas at the time.

Implementing this alar­mingly simplistic SI will unfor­tunately not solve the problem of striking a fair balance be­tween the interests of all in­volved, be they rightsholders, ISPs or internet users, but rather leave it to be teased out in the courts. Time should be taken to properly consider what changes need to be made to our copyright laws by means of primary legislation. In this context, assistance can be ob­tained from considering simi­lar debates currently taking place in many other jurisdic­tions including the United States of America.

John Gordon is a senior counsel

It's worth noting, although not explicitly stated, that the effect of this opinion is the proposed statutory instrument would be ultra vires the power of the Minister and therefore would be struck down if challenged before the High Court. To date the government talking points have been to the effect that it would be "prudent" to introduce the SI. John Gordon's analysis shows why this is flawed - unless the SI is required by EU law then the Minister has no power to introduce it.