Today the Copyright Review Committee in Ireland published its report, ‘Modernising Copyright‘ (beware, largish file). As mentioned elsewhere, I too made a submission to the committee. Eoin O’Dell (head of the CRC) posted an announcement of its release here.
Like the consultation paper which preceded it in 2012, the final report looks long at first glance. On closer inspection however, its analysis is confined to the first one hundred pages, thereafter follows seventy pages of draft legislative proposals, and the last ten pages are the skimpers’ delight – a precis of the report’s contents for the unmotivated.
Given that my nerdy interest in copyright is not equally distributed, I will not pretend to offer a full overview, but instead focus on the parts which strike me as most salient. these will be dealt with in the order that they appear in the paper, which means that Fair Use comes last, and whilst this initially seems strange, it makes sense with in the waft and warp of the Report’s own logic.
1. The consultation paper was enthusiastic about the creation of Copyright Council (CC) to serve as a policy talk shop open to the vying interests at play in the copyright arena, so no surprise to see a formal recommendation that it be created.
Its membership is to be drawn from all interested parties, which it is noted would distinguish it from analogous superficially similar organisations elsewhere whose principals tend to be rightsowners, or their licensees, or their friends or whatever.
The CC’s functions are to be many and varied, from promoting ‘awareness’ about copyright to researching the social and cultural consequences of the law, providing insight about technical issues and drawing up codes of best practice; all very worthy indeed.
The prospect of more serious responsibilities for the CC is also held out – as possible operators of the eventual domestic system to manage orphan works and of collective licensing agreements devised within a potential digital Copyright Exchange.
2. The cost of intellectual property litigation is a common complaint. The Report argues that the District Court should be enabled to hear cases up to its threshold of 15,000 euros. Another source of whinging is the shortage of Judges capable of tackling the complexity arising in IP cases, here it is suggested that a dedicated court be established at Circuit Court level.
3. Even on the part of those committed to maintaining the basic structure of copyright there has been discomfort at the scale of punishments being meted out to what are ultimately rather mild defendants, remember Jammie Thomas? (How quickly our martyrs fade back into obscurity.) The report has this to say:
there was a great deal of support in the submissions for the idea that remedies for breaches of copyright should be proportionate, and that civil sanctions (such as injunctions and damages) should be graduated. In this way, at one end of the scale, unintentional breaches would not be met with significant awards of damages, and that, at the other end of the scale, the most serious breaches would be appropriately dealt with by the award, for example, of restitutionary, exemplary or punitive damages.
4. The chapter dedicated to ‘Rightsowners’ contains nothing momentous. The request to make circumvention of digital rights management into an independently actionable form of infringement was rejected. A legislative lunar eclipse creating potentially perpetual copyright in the case of some unpublished works is listed for elimination.
Photographers receive a bone here: they were voluble during the whole process and have been especially worried that the Orphan Works proposals could be used as cover by their enemies and exploiters (everybody!) to strip the attribution from their work, declare it orphaned, and use it without payment. Actually although I’m a bit sarcastic about the tone of their contribution, I have some sympathy for them, caught as they are between a market ever more heavily populated by what were formally amateurs (now armed with high level equipment and the means to get their photos quickly to agencies over the web), an agency business ever more concentrated Getty etc munching all the competition, and cost-cutting publishers who really would screw them if they could. To allay their fears the Report argues that metadata should be protected, and stripping of same punished.
On a related point however no change is suggested regarding the use of photographs for news as part of fair dealing. I recall trying to research the logic behind this a year ago and could find no clear explanation, and that made me feel a bit dumb. So is it to serve the public interest in news access? To reduce the costs of reporting? Answers on a postcard please.
5. The real action begins in the section dedicated to ‘Users’. The tone is captured by the first proposed change: fair dealing is to ‘include’ rather than ‘mean’ the exceptions which follow thereafter – consequently the category is to be kept open, available for expansion in the future, in line with further technological change or opportunity.
A range of exceptions permitted under the EU Copyright Directive – but which had never been implemented into Irish law – are then reviewed and it is recommended that each be integrated into the statute, these include:
- private copies and format-shifting, including into formats for storage ‘in the cloud’
- non-commercial user-generated content
- extended exceptions for educational purposes (this is limited to ‘formal educational establishments’, something which seems flawed to me given the capacity and actuality of self-organised education online, by definition occurring in largely informal environments.
- enhanced exceptions for people with ‘disabilities’
6. The above exceptions are all derived from the language of the EUCD and thus of unimpeachable pedigree. In the following sections on ‘Entrepreneurs and innovation’, the Report moves into more creative territory. The crux of it is the proposal for a new exception for transformative works or uses of otherwise protected works. The opening part of the proposed legislative language is worth quoting:
(1) It is not an infringement of the rights conferred by this Part if the
owner or lawful user of a work (the initial work) derives from it an
(2) An innovative work is an original work which is substantially different
from the initial work, or which is a substantial transformation of the
(3) The innovative work must not—
(a) conflict with the normal exploitation of the initial work, or
(b) unreasonably prejudice the legitimate interests of the owner of
the rights in the initial work.
This is then followed by a series of sections limiting its applicability but the overall design represents something of a breakthrough. As an aside, it seems to me appropriate to point out that this move is to my knowledge based on the rather brilliant work of Prof. Lionel Bently at Cambridge University, who submitted a carefully argued submission to both the Hargreaves Report in the UK and then to our Irish Iteration. Therein he argued that whilst the reproduction right had been harmonised, leaving little wiggle room, the adaption right had not, and member states are free to do what they want within the limitations of the Berne Treaty. The proposed section 106 integrates the language and logic of the Berne Three Step test (the threshold legitimate exceptions must meet), but there is a strong case that this is not as stringent as might initially seem, otherwise the US’s fair use clause would already have been found in violation of Berne. Anyway, if one is going to read one technical submission in this whole process it should be Bently’s, IMHO.
7. Next up are proposals relating to heritage institutions, not my cup of tea.
8. Lastly, as if to conclude with a crescendo: fair use. And the Committee has decided that Ireland needs it, whilst being at pains to point out that this is a specifically Irish version rather than some US idea baldly imported.
The test as to whether a use qualifies as fair comprises eight criteria and the language is to be found under section 49A.
(a) the extent to which the use in question is analogically similar or related to the other acts permitted by this Part,
(b) the purpose and character of the use in question, including in particular whether
it is incidental, non-commercial, non-consumptive, personal or transformative in nature, or
if the use were not a fair use within the meaning of the section, it would otherwise have constituted a secondary infringement of the right conferred by this Part.
(c) the nature of the work, including in particular whether there is a public benefit or interest in its dissemination through the use in question,
(d) the amount and substantiality of the portion used, quantitatively and qualitatively, in relation to the work as a whole,
(e) the impact of the use upon the normal commercial exploitation of the work, having regard to matters such as its age, value and potential market,
(f) the possibility of obtaining the work, or sufficient rights therein, within a reasonable time at an ordinary commercial price, such that the use in question is not necessary in all the circumstances of the case,
(g) whether the legitimate interests of the owner of the rights in the work are unreasonably prejudiced by the use in question, and
(h) whether the use in question is accompanied by a sufficient acknowledgement, unless to do so would be unreasonable or inappropriate
These eight elements are structured into three groups: the first cluster (three factors) probes for elements which could legitimate the use; the next two criteria touch on general matters; the final group of three tests those elements which would weigh against a finding of fairness.
Overall i think there is a lot to like in this report. It display some fancy footwork in working with the constraints of the EU copyright acquis whilst responding to a need for flexibility which can serve as an incubator for economic opportunities. Let’s not fool around here: is still under the Troika and will be dealing with the fallout of the rabid tomcat and its property bubble for a long time to come.
The grand design and originality thus of ‘Modernising Copyright’ thus is the injection of targeted flexibility into the legal framework – this is no mere echo of the Hargreaves Report in the UK, which backed away from Fair Use out of fear at the uncertainty it would necessarily entail. If the Report’s authors have their way, contested uses in Ireland will first be examined to see if they fit the exceptions spelled out in the EUCD, or checked against the innovation exception if they are derivative works/adaptations. Only if they have fallen at those two fences, will the fair use test be their last chance saloon.
Now I’m curious to hear the responses of the various interests involved.
Later there will be time to ponder my reservations: the Report kicked for touch on questions around secondary liability, safe harbours etc and remained silent on the conflicts around enforcement.
And then there’s the politics – will Fine Gael and Labour actually do anything with it or will it just be buried?
I have made two corrections to this post in response to comments received after intial publication. They relate (a) to Micheal Martin’s comments in the Dail, a matter clarified in the accompanying footnote and (b) the fact that the Greens had already left the coalition government when allegations arose in February 2011 that new copyright enforcement measures were to be rushed through before the election. Happy to correct any further inaccuracies.
1. Is the Statutory Instrument and Irish SOPA?
The labelling of the copyright amendment as Ireland’s SOPA has been contested by some as inaccurate. There are differences, it is true. Most obviously SOPA is designed to target ‘foreign’ websites, whereas the Irish SI (Statutory Instrument) makes no distinction between foreign and domestic web sites.
Secondly the SI focuses on copyright questions whereas SOPA takes aim at a broader range of alleged ‘intellectual property’ infringements. Participants in the counterfeit medicine trade as well as suppliers of counterfeit materials to the military and federal agencies are made subject to increased punishments. In addition SOPA is more forensic, and paradoxically thus, transparent in the terms of the anticipated consequences: IP (internet protocol) blocking (probably jettisoned at this point), exclusion from search engine results, isolation from financing via advertising or payment systems.
But it is precisely as a result of the open-ended language of the Irish legislation that there is a justifiable fear that such means could be deployed at the discretion of an Irish judge. IRMA’s behaviour – from the negotiation of private enforcement agreements with Eircom to their current suit against the Irish state for the losses sustained as a result of unauthorised uses – indicates how ill-advised it is to make available such an unbounded instrument for their use – these people have just got a bad attitude.
Fianna Fail’s leader Micheal Martin said Sherlock was ‘perhaps not perfectly’ handling the ‘issue’, which might appear unduly mild unless one recalls the allegations published in Siliconrepublic last February. Therein it was rumoured that the then Fianna Fail/
Green coalition minority government intended to rush through copyright enforcement orders via Statutory Instrument just as they were about to be booted out by the electorate (this claim was later rejected by then minister Mary Hanafin).
Apart from the concerns about the substantive questions about legal consequences, there is a problem with method. When it takes a Freedom of Information request to discover that Enda Kenny held a private meeting last summer with the new head of the Motion Picture Association of America, former Democrat Senator Chris Dodd, then the suspicion that vested interests are intervening in a surreptitious manner to shape the law is fully justified. All the more so when it happens quietly in Castlebar .
A pattern emerges in the history of attempts to prevent users from sharing files, that of keeping the public at a safe distance from decision-making: private agreements between companies in the digital media market, closed-door audiences for lobbyists with political leaders, secondary legislation requiring no official vote so as to give form to the policy conclusions.
2. The Fight Against ‘SOPA Ireland’
StopSopaIreland went live on the evening of January 23rd, providing information on the amendment, a petition to register opposition, and appealing to users to contact local politicians. Within a week the petition had garnered 75,000 signatures, 50,000 of them identified as coming from Irish internet protocol addresses.
On the night of January 25th, a series of government websites were targeted and shut down by means of a distributed denial of service attack; twitter account AnonOpsSweden identified it as a response to the copyright proposals. In response to a question by independent TD Catherine Murphy, a fifteen minute exchange took place in the Dail on January 26th, and Sherlock later announced that a longer debate was scheduled for the 31st. As the campaign picked up steam a call circulated for a demonstration in Dublin on January 28th.
Demonstration against SOPA/ACTA & the Copyright Amendment, Dublin, January 28, 2012.
Photo by Dara Robinson.
Another demonstration has now been called in Dublin for next saturday February 4th, a day which will see coordinated protests against ACTA worldwide.
In an echo of the SOPA campaign there is an interesting contrast between the mood in online and offline media, and the a perceivable shift in the sense of how influential they are respectively. Forums such as boards.ie, and online only news operations such as thejournal.ie and broadsheet.ie have been important platforms for criticism of the proposals, whereas an earlier generation’s not especially informed attitudes can still call the print press home.
3. Empty Disavowals
For the reasons explained in section 1, Sean Sherlock’s protestations that the amendment is nothing like SOPA are unconvincing. He and his department have issued a bizarre commentary to accompany their draft amendment, which nominally purports top demonstrate why it is not like SOPA. This statement opens with the patently untrue claim that
‘We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with’
because online copyright enforcement by definition means a limitation on that freedom. And there could be a reasonable argument as to whether or not that is appropriate, just as there is, for example, in the area of child pornography.
So why dissimulate, why can he not just spit it out and say ‘we are going to limit the freedom to do what you want on the internet and place obstacles to the free exchange of data because we believe that copyright protection wins out’? The answer of course is that the politicians are fearful of how that will make them appear in the public eye. They have watched the anti-SOPA tsunami break land in Washington DC and don’t like the look of what it has left in its wake.
Of course were they to be clear about this they would have to provide a justification for their reasoning. As pointed out by ALTO the government has not carried out any Regulatory Impact Assessment to assess the results of the proposed change. Therefore any economic basis for the change can only come from figures provided by one or other of the industries implicated (and the figures bandied about seem to emanate exclusively from the music industry), or else from some other source which has not been made public.
Rather than acknowledging what is obvious to even the most cursory examination of the copyright debate, that there is a fundamental disagreement as to the legitimacy and necessity for copyright as currently constituted, the commentary continues with a massive bluff:
“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.”
But the SOPA saga demonstrates that this is untrue. So does the long fight against the HADOPI three strikes law in France. As do the massive demonstrations against ACTA in Poland last week. And so does the continued popularity of filesharing as a phenomena despite a massive and sustained attack on its participants through legal action and propaganda presented as ‘education.’ And what about the legions of lawyers and economists opposed to measures strengthening and extending copyright, some of whom are against it altogether? Don’t pretend there is a consensus of ‘reasonable people’, that’s a fiction. The ease with which these initiatives previously passed had more to do with how their content and consequences were concealed from the public, and the lack of enthusiasm on the part of industrial era media companies, themselves amongst the greatest beneficiaries of the copyright ratchet, to aerate these debates fairly,
4. Dail Debate, January 31st
Undoubtedly the full debate will shortly be available online, but the crux of it was simple enough. All of the opposition parties (FF, SF and independents) opposed the SI, albeit for different reasons, arguing that it was inappropriate subject matter for executive fiat and merited primary legislation with a full debate, or that it should be delayed and a special committee set up to investigate.
As a practical matter independent TDs Stephen Donnelly and Catherine Murphy also submitted an alternative SI in consultation with TJ McIntyre and Simon McGarr. It contains safeguards for data protection and other fundamental rihts; limits availability of injunctions to cases where damages would be inadequate; shifts the legal and technical costs of the injunction from intermediary to applicant (copyright owner), and requires that lawful data transactions be unimpeded by any order of the court. In addition the SI would be applicable time period for the instrument to two years, during which time they would expect there to be a debate over, and drafting of, primary legislation.
Objections ranged from the impact it would have on foreign direct investment, the costs which would be imposed on websites willing to contest injunctions, that it was an error to target intermediaries rather than ‘perpetrators’ of copyright infringements, and more general concerns about the impact on individual rights and freedoms. Interestingly all speakers referred to the huge amount of email they had been receiving on the subject from concerned individuals.
Sherlock was not having any of it. He parsed the alternative SI, insisting that these concerns were either unfounded or inherently integrated in European Court of Justice cases such as Sabam v Scarlet. These limits would as a constrain against any judgicial temptation to grant excessive injunctions, and require their decisions and remedies to abide by the principle of proportionality i.e. balancing the interests involved. This insistence on judicial discretion was perhaps the most outlandish aspect of his speech. Whilst asserting that the SI did not mark any change in government policy, he went on to say that given the unpredictable nature of future scenarios, they would prefer to deal with them on a case by case basis. What he means then is that there is a new policy: judges will invent the policy on the basis of how they ‘feel’ about the matter whenever the cases should arise. Justice Charlton himself outlined the danger in this approach in the very EMI/UPC decision which sparked all this.
As regards any future primary legislation, Sherlock expressed a preference for the affected parties ‘getting together’ and listeners got a good dollop of the stakeholder palaver. Of course parties like IRMA/EMI/MPAA won’t be quite as motivated, having got a measure in the bag and satisfied themselves they can get what they want.
And In Conclusion?
Light comedy, amidst general cluelessness, was injected when FG TD Jerry Buttimer spoke of the online activists as ‘keyboard warriors, some bordering on anarchism’. But only a moment later we were brought back to reality with a bang: asked whether he planned to sign the SI or consider alternatives, Sherlock announced that he’d dealt with all concerns, would not change the wording and would be signing it into effect. He did not say when exactly.
To be continued?
1 This section originally read: “Leader of the opposition, Micheal Martin grotesquely described Sean Sherlock’s handling of the process as ‘perfect'”. This report was contradicted in comments by Paul Sammon, (see below), based on the official record. Whether my mistake derived voices in my head or the result of poor audio is unclear. I can always hope an eventual review of the audio will vindicate me, but in the meantime gracious concession seems fitting 😉
According to the official record Micheal Martin’s comment was:
“The Minister of State, Deputy Seán Sherlock, is handling the issue of on-line copyright, although perhaps not perfectly at this stage. So far the handling of it is giving rise, correctly or otherwise, to a damaging perception of how this country views Internet freedom.”
2 The first version of this post was corrected after a reminder from commenter Paulie Doohan that in the Green Party had in fact left the government, leaving FF on their own by the end of January 2011. Green TD Eamonn Ryan (formerly Minister for Communications, Energy and Natural Resources), blew the whistle on attempts to sneak copyright enforcement measures through the back door. Back to post
3 ‘Kenny met US online piracy campaigner’, Colin Coyle and Mark Tighe , The Sunday Times, 28th January 2012 (behind paywall). Back to post
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
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.
Some months ago I wrote about the decision made in EMI V UPC in Ireland. In this case the music industry sought to force UPC to observe a private agreement made by the industry with another provider, Eircom, the former Irish Telecom monopoly, whereby users identified by music industry agents as infringing their copyrights would have their connections terminated after three alleged infractions.
EMI’s application failed. But ten days ago the Department of Enterprise and Innovation (the Irish ministry with legislative initiative in the sector), published a draft amendment to the Copyright Act of 2000, in an apparent attempt to provide the legislative basis for such judicial orders. A consultation period regarding the proposed amendment will continue until the end of July
Subsequent to his decsion in EMI v UPC, I had the chance to listen to the judge, Peter Charleston, give his impressions about the issues. He was thoughtful, but was also obviously somewhat at sea in a culture whose nuances he did not quite grasp. He recounted how the Irish police had visited him after the judgement, to warn him that his decision had displeased people on the internet in places like Kazakhstan and Uzbekhistan, and that they might seek revenge by stealing his credit card numbers or planting child pornography on his computer.
As he told this story I couldn’t judge whether he was being earnest or sarcastic. Perhaps Anonymous has managed to psych out the Irish police, as well as fooling them with a bit of proxying. More on this tomorrow, for now here is the text of the proposed amendment.
S.I. No. of 2011
European Communities (Copyright and Related Rights) Regulations 2011.
I, Richard Bruton, 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 on the harmonisation of certain aspects of copyright and related rights in the information society , as amended by Corrigendum, hereby make the following Regulations:
1. These Regulations may be cited as the European Communities (Copyright and Related Rights) Regulations 2011.
2. In these Regulations –
“Act of 2000” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);
“Directive” means Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society as amended by Corrigendum
3. The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (5) of section 40:
(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
4.The Act of 2000 is hereby amended by the insertion of the following subsection after subsection (9) of section 205:
(9A)(a) without prejudice to subsections (7) and (8), the rightsowner may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (7) where those facilities are used by one or more third parties to infringe any of the rights referred to in Parts III and IV.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.
GIVEN under my Official Seal,
This day of 2011
Minister for Jobs, Enterprise and Innovation
 OJ No. L167, 22.6.2001, p. 10
 OJ No. L 006 10.1.2002 p.70
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.
Eamonn Crudden, Irish filmmaker, Mob Manifesto writer and zombie-economy observer has just released his painstakingly assembled documentary “Route Irish” over Bit Torrent. To my knowledge it is the first time an Irish documentary feature has been released using p2p as its primary delivery mechanism. Premiered in Dublin earlier this month, the documentary is an account and critique of the movement against the use of Shannon airport on the Atlantic seaboard as part of the “war against terror”. The film is the result of nearly five years of work and is written with an attention to detail familiar to those who have seen Eamonn’s previous work, such as “Berlusconi’s Mousetrap” narrating the events of the G8 meeting in Genoa, 2001. More on this later, the torrent for “Route Irish” is available here.
Today’s Cork Examiner carries an article on a Mr Michael McDonagh, an unemployed man 42 years old, who was yesterday sentenced to six months in jail and a 1,500 euro fine. He was convicted of ten counts of copyright infringement, having been caught with 400 CDs and DVDs at his market stall in Co. Leitrim. The case was heard in Carrick on Shannon Court and the prosecution was taken by the Irish Recorded Music Industry Association, the local equivalent of the RIAA. Seemingly he is the first person to be jailed under the criminal provisions of the law.
Apart from the well known vexations of Stephen Joyce regarding his grandfather’s literary estate, it’s not often that Ireland sees juicy copyright action. Today’s Irish Times however reports that a theatre production ‘loosely adapted’ from Disney’s 1992 movie “Sister Act” (Touchstone) has been forced to cancel after receiving threats from Disney’s solicitors in Dublin. The play was to be staged by a group of gay and lesbian students in Galway together with some straight fellow thespians, and had been in preparation for six months.
Disney, of course, have a well-documented history of aggressive copyright litigation, particularly when the uses stray into areas that might tainit their reputation as home of wholseome family entertainment i.e. queers and drugs are not welcome. Back in 1971 a group called the Air Pirates began producing parodies of Micky Mouse wherein the mice deal drugs and have sex with one another; the case went to court and was judged to be an infringement of copyright. Disney’s vigour in clamping down on all deviant uses of their snow white characters are well documented in Fantagraphics “The Pirates and the Mouse: Disney’s War Against the Counterculture”.
Elsewhere, anyone who has paid attention to the fight over copyright in recent years knows that they are commonly regarded as the main force behind the extension of the copyright term in 1998, motivated by the looming loss of control of characters like their mouse.
Last thursday the European Court of Justice issued its decision in the Commission’s case against Ireland regarding the transposition of Directive 92/100/EEC of 19 November 1992 on rental right and lending right. Irish law exempted public, educational and academic institutions to which members of the public have access, from having to pay remuneration to copyright owners. The Irish based their defence on the derogation set out in Article 5(3), allowing exemptions of certain categores of lending establisjments based on the needs for national cultural policies.
Alas, the ECJ gave short shrift to the article, insisting the effect of the law as transposed was to deny authors exactly the remuneration the Directive was intended to provide. The result of course is that the public will have to cough up and pay the collecting societies out of the tax-kitty, even if the pain will pass unperceived as it will be a matter for the The Department of the Environment, Heritage and Local Government and the County/City Councils who run the library system.
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- civil liberties
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- Pirate Bay
- Pirate Party
- social cooperation
- steal this film