SOPA and Ireland: Minister publishes draft of statutory instrument

26 Jan 2012

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Pin on PinterestShare on RedditEmail this to someone

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Pin on PinterestShare on RedditEmail this to someone

One of the main reasons for the ‘Irish SOPA’ controversy brewing up was no one had seen the draft legislation, or statutory instrument amending the legislation. Today, junior Minister Sean Sherlock, TD, published that legislation.

The timing of the statutory instrument, which is due to be signed this week, couldn’t have been worse for the Irish Government, considering it was only last week that massive public protest derailed the progress of the SOPA and PIPA bills in the US. Some 30,000 people have signed a petition against the signing of the statutory instrument and even hacker group Anonymous was motivated to attack Government servers at the Departments of Justice and Finance on Tuesday night.

Before publishing the draft legislation – which is the subject of a legal action by the music rights holders in Ireland against the Irish Government – Sherlock last night strenuously denied that the statutory instrument is not Ireland’s version of the US Stop Online Piracy Act.

“We all 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.

“Going right 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 right holders 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."

The statutory instrument came about following a victory by UPC in the High Court in 2010. 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.

Sherlock said EU law has held that copyright is not an absolute right, and at the same time a fair balance needs to be struck between protecting copyright and protecting the rights of individuals.

“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 of 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.

“National courts must strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as ISPs.

“Neither can the courts grant an injunction that would infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive and impart information," Sherlock said.

Full text of draft legislation regarding copyright law

Draft of

R E G U L A T I O N S

entitled

European Union (Copyright and Related Rights) Regulations 2012

__________________________________

To be made by the Minister for Jobs, Enterprise and Innovation

I, _____________, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[1], hereby make the following regulations:

1. These Regulations may be cited as the European Union (Copyright and Related Rights) Regulations 2012.

2. The Copyright and Related Rights Act 2000 (No. 28 of 2000) is amended in section 40, by inserting the following subsection after subsection (5):

“(5A) (a) The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[1] on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified of the application) as the court considers appropriate in all of the circumstances, and

(b) in section 205, by inserting the following subsection after subsection (9):

“(9A) (a) The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[1] on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall grant such directions (including, where appropriate, a direction requiring a person to be notified of the application) as the court considers appropriate in all the circumstances."

GIVEN under my Official Seal,

____ ________ 2012.

_________________________

Minister for Jobs, Enterprise and Innovation.

Editor John Kennedy is an award-winning technology journalist.

editorial@siliconrepublic.com