Ireland: Three Strikes and Fair Use
Last week a chill ran through the irish blogosphere: former Green party minister Eamonn Ryan suggested that the outgoing Fianna Fail administration might introduce three strikes/’graduated response’ against file-sharing just as they were being kicked unceremoniously out of power. How would they do that? A statutory instrument, a diabolical device enabling the introduction by the executive of secondary legislation, based on a prior legislative act (in this case the Copyright Act as amended), without having to debate or pass it in the Dail (Parliament). Back-door legislation, in other words. This threat was quickly disavowed by the relevant minister, Mary Hanafin (who lost her seat anyway in the subsequent election). Alas this may not end the matter: the new senior government partner Fine Gael, are suspected to be favorable to a three strikes style solution.
Recent History of Online Copyright Shenanigans in Ireland…
The record companies first went on the offensive in 2005. That year the Irish Recorded Music Association (representing EMI, Warner et al.) sought and obtained a high court order to identify 17 individuals observed allegedly sharing copyrighted works (via their internet protocol addresses). Two further batches of identifications were granted in 2006 and 2007 against an additional 72 people, opening the way to civil infringement prosecution. According to IRMA defendants agreed to pay the plaintiffs around 2,500 euros each to settle out of court.
In March 2008 IRMA initiated action against the former telecoms monopoly Eircom, the largest supplier of broadband in Ireland, presumably based on a theory of contributory liability. The year before a Belgian collecting society had won a decision obliging an ISP to install filtering software in order to prevent copyright infringement. That case, Sabam v Scarlet was later referred to the European Court of Justice and a decision on the issue is expected this autumn.
Rather than confront this pressure in court, Eircom agreed to enter into a voluntary agreement with the music companies, whereby the ISP would take action against users identified by the plaintiff companies as having infringed their works. IRMA committed themselves to negotiating similar agreements with other ISPs so that Eircom would not be put at a competitive disadvantage due to their collaboration. That summer IRMA also sought a court order obliging Eircom to cut off access to the Pirate Bay, an application which was not opposed by the provider, and duly granted that September.
Concerns over the Data Protection aspects of the Eircom/IRMA agreement, the settlement was referred back to the High Court in April 2010, when it was given the green light by Judge Charleton. In the meantime other ISPs were proving to be less accommodating to IRMA’S demands, especially UPC, owner of a cable networks and formerly know as NTL. They refused either to block access ot the Pirate Bay or to make a private agreement against their users interests with IRMA. Predictably this ended up in court last October. The result was resounding victory for UPC. Justice Charleton acknowledged that there was nothing in Irish law requiring the ISPs to police their users in this way. ISPs are obviously ‘mere conduits’ for data operations, do not have any role in executing infringing activity, and are consequently protected from liability under the safe harbours for service providers under article 12 of the EU ECommerce Directive. He also conceded that there was no legal basis for grant of a blocking order as regards the Pirate Bay, and underlined that his previous decision to the contrary resulted from the fact that Eircom had not opposed the previous order nor seen fit to make any argument against it.
There is also an interesting business background to this series of events: Eircom have been haemorrhaging customers at a rapid pace, according to some estimates 1000 users per month. In the meantime UPC increased their number of phone subscribers by 60% last year. How many of those customers were attracted by the stance taken by UPC on users’ rights? Impossible to say, but it cannot have been irrelevant.
Meanwhile Eircom are having serious difficulty managing their debt levels and have warned that they may breach their covenants. Sad to say, but it’s hard not to feel some glee at their predicament; the highest line rental charge in Europe, negligible investment in the infrastructure, pathetic service and to cap it all, an unwillingness to defend their own customers legal interests in court against an industry that they were getting into bed with.
Given the recent scare, it is good to hear that there is now a ‘free culture’ group also in Ireland, launched on the initiative of Kevin Flanagan who I met at the last international meeting of EXGAE/LaEx in Barcelona in late October. They add some more attentive eyes to the trojan efforts of the people at Digital Rights Ireland, sentinels of digital civil liberties in Ireland…
.. and finishing on a Bizarrely Positive Note…
Fine Gael for Fair Use?
This whole palaver roused my curiosity about current goings on in matters copyright in Ireland. And it was with some astonishment that I discovered that Fine Gael (the victorious party in last week’s election) have at least one decent policy: it seems that they are proposing a pan-European fair use defense. Surprised as I was at first, there is a logic to it, given that Google employ over 2000 people in Dublin and the technology sector (largely composed of US multinationals) remains one of the few parts of the economy to continue performing.
Now there has been endless blather as regards the ‘knowledge economy’ in Ireland over the years, so serious scepticism is warranted (the persistence of substandard connectivity is a monument to broken promises of shiny futures past), but on copyright flexibility at least they seem to be tiliting the right way. I read that DRI organised a day school on these themes at Google recently, it seems that some of that work may have delivered a yield. Fair play.
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