Ireland’s SOPA: could a new Copyright Act be the way forward?

30 Jan 2012

Primary legislation, potentially in the shape of a new Copyright Act or an amendment to the existing legislation, is being examined as a way to ensure Ireland is at the forefront of resolving copyright infringement cases in the digital age.

Last week Ireland found itself in the eye of the ‘SOPA’ storm in terms of a statutory instrument that will give judges the power to grant injunctions to ISPs in copyright infringement or illegal download cases.

Protest in the form of an online petition and major social media activity led to Minister Sherlock agreeing to debate the matter in the Dail tomorrow.

Either way the consensus is that the statutory instrument will be signed into law. Experts expect legal proceedings against ISPs to begin almost immediately. Simultaneously Ireland’s Government is being sued by the music industry as part of a Francovich action over allegedly failing to stem music industry losses in the face of illegal downloading activities. A Francovich action is an action that can be taken by a stakeholder if it believes an EU member has failed in its legal obligation to transpose an aspect of European law

The reasoning behind the statutory instrument harks back to the 2010 court case between UPC and Irma when 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.

New copyright legislation could be on the way for Ireland

Ultimately, much of the protest against the statutory instrument which has been dubbed ‘Ireland’s SOPA’ in the aftermath of the Stop Online Piracy Act debate in the US, is about what is fair and proportionate, argues Michele Neylon of Blacknight Solutions, one of Ireland’s largest hosting providers.

“The problem with it was there was no dialogue with the public or with industry. There was a public consultation but very few people in the internet industry knew about it or were invited to participate.”

Neylon said that in terms of the internet the key to dealing with the removal of copyright infringing material is to act in a proportionate manner rather than having operators and hosting firms spending a lot of time in court defending themselves against ‘spurious’ actions. He said that he understands the EU is planning a consultation on protections for service providers.

“What needs to be put in place is best practice for handling disputes. If a blogger for example posted infringing material on their blog such as a video or a song, there is no way for me to remove a single page from that blogger’s blog without closing down the entire blog site.

“It’s about acting in a proportionate and sane manner rather than placing administrative burdens on websites, ISPs and hosting providers, and this is something the rights holders need to understand.”

He said that what is needed is fair, balanced and proportionate methods to deal with infringement and that involves rights holders and the technology industry working together.

“One of the issues is that that the Irish legal profession isn’t very well clued in on the digital front,” he said, indicating in his view that legal professionals all too often purse the provider instead of the perpetrator.

Neylon was part of a committee that met with Minister Sherlock last week.

“In the conversation we had with the Minister he said he would be open to doing something in terms of primary legislation that reflects the need to protect copyright but also the changing internet landscape.”

Could statutory instrument be declared unconstitutional?

Barrister Ronan Lupton of licensed telecoms group ALTO agrees that primary legislation may be on the cards but warns that this could take a long time.

“The first thing that has to be borne in mind is that the music rights holders have issued proceedings against the State as part of a Francovich action; an action that declares Ireland to be in breach of its obligation in relation to European law.”

However, Lupton also points out that Mr Justice Charleton, in his judgment in the UPC case, said Ireland was compliant with EU law but came to the conclusion that he didn’t have the ability to grant an injunction.

“This statutory instrument may be prudent in terms of avoiding a court case taken by the music industry, but is it necessary? If the State is currently compliant then there is no need for a clarification or statutory instrument.”

Lupton says the question that then arises is, is the minister going to be acting with the full strength of the law. “This may be unconstitutional and may not be discovered until it faces the full strength of a court case.”

Lupton said that statutory instruments are required to be laid before the Dail for 21 days. “Time has been given in a very dilatory fashion to allow stunted or pigeon debate on a subject that could seriously impact investors in Ireland who require legal certainty when investing in a country.

“Legislation should be decided upon a policy basis – primary legislation should be brought forward rather than the Government rolling something through merely to try and save the State money in relation to a potential Francovich action.”

At the same time Lupton said that music rights holders – indeed all copyright holders – deserve legal certainty.

“This is really about the interplay between e-commerce and Copyright legislation,” Lupton concluded.

“What should be done is suspend the statutory instrument into an overall review of the Copyright Act and develop new and innovative laws that give rights holders more certainty too,” Lupton said.

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years