Simplistic Internet regulations court troubleIt'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.
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
Sunday, February 05, 2012
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: