Any day now, the Government of Ireland will sign a statutory instrument that will give courts the power to grant orders to ISPs and other entities suspected of infringing copyright. This will be done at the stroke of a minister’s pen and without any parliamentary debate.
Effectively, despite a decision by the European Court of Justice on 24 November that EU law precludes injunctions being taken against internet service providers (ISPs), requiring them to block users from illegally sharing music and video files, Ireland is pressing ahead regardless.
It is expected to be published on 26 January.
At the same time, it appears the Government is being sued by the major record labels for not rolling out the statutory instrument fast enough.
The question is, will petitions stop the signing of the statutory instrument and at least bring about a forum for proper debate on the issue? I think it is unlikely, and indeed Ireland, along with other EU states, is due to ratify a trade agreement – the Anti-Counterfeiting Trade Agreement (ACTA) – that supports rights holders’ call for mandatory network-level filtering by ISPs and three-strikes style graduated response practices.
So you have to wonder was the entire Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) debate really just a side show for a wider train of international events that were already in progress? The US, Australia, Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada all support ACTA.
How the statutory instrument came about in Ireland
In 2009, the rights holders in the form of IRMA – representing such labels as Sony, Warner, Universal and EMI – secured an out-of-court settlement with Eircom which agreed to implement a three-strikes regime against offenders.
This led to the rights holders pursuing other ISPs to implement the same policy and cable broadband provider UPC defended itself in a High Court action. In his judgment, Mr Justice Peter Charleton held that laws seeking to identify and disconnect copyright infringers were not enforceable in Ireland, regardless of the record companies’ complaints.
He said he was cognisant of the financial harm being suffered by record labels due to illegal downloading. "This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry," Charleton said.
The statutory instrument in the works to close the gap that Charlton pointed to on the issue of copyright and which will give courts the powers to grant injunctive relief against ISPs is being handled by the Department for Jobs, Enterprise and Innovation under the auspices of Junior Minister Sean Sherlock.
Ironically, the Data Protection Commissioner recently ordered Eircom to halt its three-strikes policy.
A year ago, I brought to light the news that a statutory instrument was being prepared in the dying days of the previous government to give judges such powers. At the time it caused a bit of a kerfuffle and I was told by rights holders there was no such statutory instrument in the works. It was also denied at the time by Minister Mary Hanafin.
At that point, I remember wags on Twitter simply deciding I was wrong. Yep, I guess it must have been my imagination.
So now we are within two days of an important amendment to the Copyright Act 2000 being written into law without any debate on the matter. Despite the furore last week that saw hundreds of sites in the US black out in protest.
The war on piracy
Let me be clear. I do not for one second approve of piracy. I personally insist on buying legitimate music on iTunes and like to collect DVD box sets. The value, quality and sheer entertainment these products deliver must be cherished and protected.
I do not condone illegal downloading of copyrighted material via the internet because I know the havoc it is wreaking on the livelihoods of artists like musicians, writers, filmmakers and software producers, too. If you asked IRMA or any of the music rights holders they would tell you that hundreds of millions of euros worth of damage has been inflicted on their industry over the past decade. They are frustrated beyond belief.
It is a fundamental issue, but one that needs to be properly debated … in the open.
Napster happened in 1999 and since then the global music industry has lost billions of dollars through the growth of file-sharing sites.
But has the industry truly tried to innovate its way out of this situation? I don’t think so.
Models like iTunes, Deezer, Netflix and Spotify actually work. People are willing to pay for quality content if the delivery mechanism is available at a price they can afford and they can get the content they want.
The one thing that has not happened in the 13 years since Napster arrived has been rights holders and internet players – including ISPs – sitting down and working together to find a solution. Everyone can benefit.