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Submission on Changes to Irish Copyright Law

See also a later post here.

In Ireland an amendment to the copyright law which might otherwise have passed unnoticed has encountered unprecedented opposition in the tailwind of the massive campaign against SOPA in the United States. Stop SOPA Ireland collected 50,000 signatories from Irish IPs for their petition in just a few days, and on saturday there was a demonstration in Dublin against both it and ACTA (which the Irish ambassador signed in Tokyo last thursday).

The change in the law will enable Copyright owners to get injunctions against any intermediary whose facilities are being used to commit copyright violations. this is achieved using language so broad as to constitute a charter for copyright owners to undertake fishing expeditions to see how far they can go in bending network enablers to their will.

In addition the law is being changed not by means of primary legislation, but through a statutory instrument, which means that its adoption does not even require a vote in either parliament or seanad (senate). Under scrutiny from the public however Sean Sherlock has scheduled a debate on the matter tomorrow in the Dail (Irish Parliament).

Last summer, I submitted the objections below to the responsible Department. I received an acknowledgment email but the content was obviously disregarded as the latest draft of the amendment is basically unchanged. Similar objections were made by groups such as Digital Rights Ireland and trade associations such as ALTO.

****************

I am writing to express my opposition to the proposed amendments to the
Copyright act 2000 by statutory instrument. As the same formulation is
adopted in the drafting of proposed subsections 5 (a) and (b) of section
40, and section 9 (a) and (b) of section 205, the comments refer to both
changes.

1. Due to the open-ended nature of the provisions, the way is cleared
for actions against both service providers and websites of all types
which due to their technical design may also find themselves dragged
into infringing activity. The correct means to address this is to
require the implementation of a notice and take-down procedure, as
envisaged by the legislation, but never put into effect by the Minister.

Given the history of overbroad claims of copyright infringement by
copyright holders, such a system should also include the possibility for
the alleged infringer to issue a counter-notice allowing them to defend
uses which they believe to be non-infringing. In such cases, the
targeted material should be made available online again if legal action
is not commenced within a brief period after the initial complaint.

2. The wording of subsection 40 (5) (a) and 205 (9)(a) is overly broad,
setting out no limiting conditions on circumstances where injunctions
may be imposed. It is to be noted that equivalent provisions (giving
effect to the requirement that injunctions be available) in UK
legislation require ‘actual knowledge’ of infringing activity on the
part of the service provider.

Such language is present in Statutory instrument 68 of 2003 by which the
minister implemented the relevant provisions of the Electronic Commerce
Directive. Whilst the amendment is proposed in the context of mere
conduit this is not specified in the proposed amendment, leading to a
concomitant blurring of the position with regard to the limitations on
liability for hosting and caching.


3. A reference is currently before the European Court of justice which
addresses the complex interplay of the directives in the field of
copyright, electronic commerce, data protection, privacy and fundamental
rights protected under the Charter since the entry into force of the
Lisbon Treaty: SABAM v Scarlet. A decision in expected in the autumn. An
reading of the opinion issued by the ECJ’s Advocate General has already
indicated the the level of care necessary to ensure the protection of
fundamental rights in these situations. In addition, he has also spelled
out a requirement that any system of limitation on the transmission or
reception of information online reach a standard of clarity and
specificity that the ‘quality of law’ test of the European Court of
Human Rights.

This case is particularly important as it addresses the extent of the
obligations imposed on member states by the relevant directives. Courts
in European jurisdictions have diverged as to what the obligations, or
limitations on action, are.

Given the proximity of the full decision on this matter, this is not the
appropriate time to legislate.

4. The Scarlet/SABAM litigation regards proposals to restrict the
exchange of data between users, and does not address the subject of
restrictions on access to specific websites on the part of users, a
matter which has recently been the subject of much litigation. Judicial
decisions on applications to oblige ISPs to block access to specific
websites are divergent. Courts in Austria, Denmark, Italy, Sweden and
the UK, have granted such orders; Courts in Holland, Belgium and Norway
(which has implemented the relevant EU directives) have not. Where such
orders have been granted, this has usually involved websites found to be
infringing in a prior court decision.

Amongst legal commentators there is concern that, in those cases where
such orders have been granted, inadequate weight has been granted to the
interests of users whose use of such sites are non-infringing, and as a
consequence may be disproportionate to the interests sought to be
protected. On this subject, I recommend the excellent analysis
“Injunctions against mere conduit of information protected by copyright
- A Scandinavian Approach”, by Clement Salung Petersen and Søren
Sandfeld Jakobsen, recently published in the International Review of
Intellectual Property and Competition Law.

5. The amendment contains reference to the ‘due regard to the rights of
any third party likely to be affected’. Given that in this case the
third parties likely to be effected may comprise a substantial part of
the Irish computer-using population, a statutory instrument is not the
appropriate manner by which to introduce such changes. Any legislation
in this area should be the result of a public debate in Dail Eireann
which allows all interested parties to contribute to and observe the
debate.

6. The Department has described the UPC v EMI case as the background to
the need for these amendments. In the public notification regarding the
amendments it states that it “is not about the introduction of a
statutory regulatory regime in relation to copyright infringement such
as the French “Hadopi” system or the “Three strikes” regime set out in
the Digital Economy Act in the United Kingdom.” Given that the
motivation behind EMI’s action against UPC was the refusal to institute
a privatised version of “Hadopi” which indeed was a “Three Strikes”
regime as implemented by in a settlement made by IRMA with Eircom, the
attempt to deny a link with such regimes seems disingenuous. The
Eircom/IRMA scheme was merely the application through private
negotiation of an equivalent agreeable to both parties. This scheme
enabled the democratic process to be bypassed precisely because, one
suspects, of the widespread opposition to such schemes amongst the public.

7. Here I must note that under the existing legislation, copyright
holders have ample access to mechanisms for the pursuit of those
infringing their works. Irish courts have enabled plaintiffs to access
alleged infringers’ identities via Norwich Pharmacal orders, information
enough for them to be then prosecuted for acts of copyright
infringement. That rightsholders find this legal path to be inconvenient
is no excuse for the imposition of further obligations on service
providers, obligations which will imply additional costs, expense which
will in turn be passed on to consumers.

Expansion of secondary liability in this area will have the effect of
reducing the legal certainty of service providers and erode the
willingness to innovate in this field in the jurisdiction.

8. To conclude, this amendment is imprecise, untimely, and introduced in
a manner corrosive to the public debate urgently required on this
matter. As currently formulated, it represents a threat to legitimate
interests of users, an unjustified cost risk to service providers and
intermediaries and a hindrance to innovation.

January 31, 2012 - Posted by | /, civil liberties, copyright, ireland, law

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