Minister of State Sean Sherlock
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 rightholders 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.
It may be useful to explain the background against which the requirement for the amendment to the Copyright and Related Rights Act 2000 has arisen. In the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications). In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s). As you will appreciate, non-compliance with EU law is a very serious matter.
The “Mere conduit” principle provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a “safe harbour” against liability, by virtue of the e-Commerce Directive [2000/31/EC]. However, according to the same directive, this freedom from liability does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.
Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
The Department of Jobs, Enterprise and Innovation had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not Mr Justice Charleton’s view.
The Attorney General’s Office has advised that the obligation contained in the Directive is clear and unambiguous. Rightholders must have a mechanism available to them to apply for an injunction against intermediaries where their intellectual property rights are being breached. Separately the Office advised that the prudent course was to introduce a Regulation to ensure compliance.
The Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties. Rightsholders were in favour of the proposal with some claiming it did not go far enough. Telecom companies, in general, argued that it was not necessary and some argued that the findings in the EMI v UPC case were incorrect, that Judge Charlton, in stating that Ireland was not in compliance with the Directive, was mis-informed. Others argued that fundamental human rights could be at risk. Having considered all these submissions and for the avoidance of doubt, it is intended to introduce a Statutory Instrument to restate the position that was considered to exist prior to this judgment.
Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States. These concerns are not based on fact. The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above. It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to and have been required since at least December 2002 and since that time the internet has flourished. Europe is quite unlike the United States. In granting any injunctions an Irish court must take account of Court of Justice of the European Union judgements. The court must consider the rights of any person (including businesses) likely to be affected.
EU law has held that copyright is not an absolute right but must be balanced with other rights protected by the Charter of Fundamental Rights of the European Union.
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.
The Court of Justice of the European Union, on 24 November 2011, clearly laid out these principles that will guide all national courts in future (Case C-70/10- SABAM). It also found in that case that requiring an ISP to install a contested filtering system would not be respecting the requirement that a fair balance be struck between the right to intellectual property and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.
In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case. It is very clear from the rulings of European Court that any remedy applied will have to be proportionate and we can be confident that this approach protects rightsholders by allowing them the access to the courts that we must provide while protecting the fundamental rights of third parties.
I trust that this information will clarify the issue.